India Wharf Brewing Co. v. Brooklyn Wharf & Warehouse Co.

I am unable to agree with the majority of the court that this record discloses a disputed question of fact, or conflicting inferences to be drawn from admitted facts, upon which the Appellate Division rested its judgment of reversal.

The order of reversal states that the judgment of the Special Term is reversed on questions of fact and of law, but we have frequently held this statement does not create a question of fact. (Otten v. Manhattan Railway Co., 150 N.Y. 395, 401.)

Whether there is a question of fact is always a question of law which the court decides for itself by an examination of the record.

The sole question in this case is one of law and depends upon the construction to be given the deeds of 1842 and 1848, and the maps of 1841 and 1847. Upon this construction alone rests the plaintiff's right of access from its premises to the Atlantic Basin.

The Special Term decided, in reference to the acts of defendant as to which complaint is made, "that such entry by the defendant and the partial construction of said pier in the said water slip or water way is unlawful and illegal and was done without the consent and against the will of the plaintiff and in violation of the rights of the plaintiff in the said slip or water way."

It also decided "that the further construction of said pier, or the maintenance of the portion of the same already constructed, will seriously and irreparably damage the said property of the plaintiff and diminish the value of the same."

These findings, that the action and proposed action of the defendant were an invasion of the rights of the plaintiff, were necessarily based on a construction of the deeds and maps to which reference has been made and only involved a question of law.

The record contradicts the statement contained in the order of reversal, that it was based on questions of fact and of law.

The determination of the Appellate Division that plaintiff is not the owner of the India Wharf did not dispose of this case. The question still remained what rights were vested in the plaintiff by the deeds and maps in question.

There was very clearly established by the documentary proofs an easement of access in plaintiff to the Atlantic Basin, a right which seems to be conceded by defendant, and we thus have presented an interesting and important question of law, on undisputed evidence, as to whether the defendant is invading that easement.

The evidence relating to the four piers that have been erected inside of the basin since the deed of 1848 is wholly immaterial and has no bearing upon the legal question presented by this appeal. If the plaintiff or any other abutters upon the basin saw fit to allow the construction of those piers by express permission or without protest, that fact confers no right upon the defendant to erect other structures.

The sole question now presented is, what were the legal rights of the plaintiff under its title deeds, and the maps explaining the same, at the time this action was begun.

There is a further objection to the dismissal of the appeal, based on the fact that the prevailing opinion discusses the merits of this controversy and decides the only question in the case against the plaintiff.

This portion of the opinion is doubtless obiter dictum, yet if the dismissal of the appeal is, as intimated, an act of grace to the plaintiff, it should be permitted to depart the court in pursuit of any supposed remedy that may survive this decision, untrammeled by a hostile discussion of the merits.

I vote against the dismissal of the appeal on the ground that only a question of law is before the court which it must decide.

PARKER, Ch. J., GRAY and HAIGHT, JJ., concur with O'BRIEN, J.; BARTLETT, J., reads dissenting opinion; CULLEN and WERNER, JJ., absent.

Appeal dismissed.