Mayor of New York v. Ryan

The use to which the slip was devoted, the request made by the defendant of the temporary dockmaster for a berth for his barge, were circumstances from which the jury would be justified in inferring that it was a public slip. At all events, the defendant should have taken the objection below, that an opportunity might have been afforded to furnish testimony more full and explicit, which doubtless could have been supplied by a further examination of the dockmaster, Moneypenny. The defendant, having neglected to make the objection below, cannot have the benefit of it now upon appeal.

Moneypenny swore that he was the dockmaster of the 5th ward. This was sufficient, prima facie, and if the defendant was not satisfied with his declaration of the fact under oath, he should have cross-examined him upon the' point. His omitting to do so was a tacit admission of the fact.

*371The 11th, 12th and 13th sections of the 2d title of the ordinance, confers upon the dockmaster the power to give such orders and directions, from time to time, touching the berth of any vessel, as Tie shall think just and proper. The defendant’s barge was, therefore, subject at any time to be removed to a different position, if the dockmaster thought it just and proper that it should be removed. If Moneypenny had granted permission to the defendant to'occupy, with his barge, the position he did, he had the power to revoke it, and direct him to remove to another part of the slip. The whole matter of the arrangement of the vessels in the slip, the positions they should respectively occupy, or the changes to be made, were altogether in the discretion of the person discharging, for the time being, the duties of dockmaster. The maintenance of a proper regulation requires that some person should be intrusted with a general power of direction, and that power is conferred by the ordinance upon those authorized to act as dockmasters. The defendant was bound to remove when directed to do so. He acquired no right to retain his position, because he had once been placed there, and having refused to comply with the direction given, he incurred the penalty.

The right of the plaintiffs to pass ordinances in matters purely of municipal regulation, and to enforce them by penalties, has been recognized by repeated acts of the legislature. The right to make such by-laws and ordinances, from time to time, as they shall think proper, for regulating the wharves, piers and slips of the city, is expressly given by the 236th section of the act to reduce the laws relating to the city into one act; (2 Rev. Laws, 436;) and the point now insisted upon, that the legislature cannot delegate a similar power, that it is contrary to the constitution of the state, &c., was raised and passed upon in Stokes v. The Corporation of New York (14 Wend. 88).

I think the order of the dockmaster was a gross abuse of the discretion vested in him, for which, if there *372is no mode of punishing him, it is to be regretted. His conduct in directing the defendant to remove within a few hours after he had been assigned the berth, was oppressive and unreasonable, and such conduct ought to be restrained, and such abuses corrected by the proper authority. But I nevertheless think that he had authority to give the direction, and that the defendant was bound by law to obey.

I regret to, say the judgment must be affirmed.

Ingeaham, First J., concurred.

Judgment affirmed.