Atlantic Dock Co. v. City of Brooklyn , 1 Abb. Ct. App. 24 ( 1867 )

By the Court.

Porter, J.

The statute under which the action was brought is free from constitutional objection. Darlington v. Mayor, &c. of New York, 31 N. Y. 164.^*

The pier injured by the rioters was within the limits of the city of Brooklyn. It has been repeatedly adjudged that the boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with the original low water line on the East River shore, or varied by the permanent encroachment of docks, piers and wharves, or other artificial erections for the purposes of general commerce. Stryker v. Mayor, &c. of N. Y., 19 Johns. 179 ; Matter of Furman Street, 17 Wend. 649, 660; Luke v. City of Brooklyn, 43 Barb. 54; S. C. affirmed in court of appeals, June Term, 1865.^† The motion to dismiss the complaint was, therefore properly denied. A cause of action was established by the proof, and a nonsuit would have been plainly erroneous.

It is suggested that damages should not have been included in the verdict for the destruction of the dredging machine, on the ground that it was afloat on the waters of the Atlantic basin, and without the bounds of the city of Brooklyn. That question is not before us for consideration. Our province is simply to determine whether any erroneous ruling was made in the court below, and not to retry the original issue. The defendants requested no instruction to the jury on this subject, and they cannot complain of the judge, for omitting to pass upon a question of law which was not submitted to him for decision.

The court properly refused to charge that the pier had been dedicated by, the plaintiffs to the use of the public.^* Such an instruction would have • been wholly unwarranted by the evidence.

The judgment should be affirmed with costs.

All the judges concurred in this opinion.

Judgment affirmed, with costs.

* On the constitutional question, see, also, Baldwin v. Mayor, &c., p. 76 of this vol.; Moody v. Supervisors of Niagara, 46 Barb. 659; affirmed as Ely v. The same, 36 N. Y. 297 ; Wolfe v. Supervisors of Richmond, 19 How. Pr. 370; Luke v. City of Brooklyn, cited in the principal case above ; Sarles v. Mayor, &c. of N. Y., 47 Barb. 447; Orr v. City of Brooklyn, 36 N. Y. 661; Metropolitan Board of Health v. Heister, 37 Id. 661; Eastman v. Mayor, &c. of N. Y., 5 Robt. 389; People v. Pinckney, 32 N. Y. 377.

† Not reported.

* See Matter of Thirty-second-street, 19 Wend. 128; People v. Kerr, 27 N. Y. 188; affirming 37 Barb. 357.