Lafredo v. Bush Terminal Co.

O’Brien, J. Defendant’s Pier 5 in Brooklyn is thirteen hundred feet in length and is divided into four transverse sections, of which C and D constitute the outshore end. Both these sections were leased to Wilhelm Wilhelmsen who took them for the benefit of the Wilhelmsen Line and the Baltic American Line. The lease covers all of sections C and D and, therefore, the leased premises necessarily include that part of the shed erected thereon. *325 These companies employed the Steamship Terminal Operating Company to operate the two sections. The lease to Wilhelmsen provides that the lessee shall have the “ exclusive use ” of sections C and D but that defendant, upon reasonable notice by the lessee, shall keep and maintain the premises in repair. Defendant also covenants that it will maintain railroad tracks not only upon the demised premises but also along the entire length of the pier, so as to connect these premises with the railroad terminal bridge operated by defendant, and that it will operate the tracks and move the cars at its own risk and expense. The lease reserves to defendant the right to collect and retain wharfage on all canal boats, barges, lighters and other harbor craft while lying at the leased premises. Plaintiff, an employee of the Steamship Terminal Operating Company, while engaged outside the shed near the stringpiece at the outer edge of the pier in loading cargo on one of the Baltic American Line’s vessels, was injured by the fall of a defective beam which had become insecure above the lintel of a doorway of the shed on the demised premises and which had been inserted there as a rain drip to prevent water falling upon the sill.' The distance between the doorway of the shed and the string-piece near the north edge of the pier is slightly more than two feet. No questions relating to the unsafe condition of the rain drip or to contributory negligence survive. The record must be searched to ascertain the existence of evidence upon which can be predicated control of sections C and D by this defendant. Control by a landlord out of possession who has covenanted with his tenant to make repairs, must be such as “ implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them.” (Cullings v. Goetz, 256 N. Y. 287, 290.) In the trial of the case at *326 bar, the jury was charged that, if there was no absolute control by defendant or if control was not shared by defendant in that part of the pier where the accident occurred, plaintiff could not recover. In an endeavor to prove control of the leased premises by defendant, plaintiff called five witnesses who were defendant’s vice-president, its general superintendent, its superintendent of maintenance and two carpenters employed by defendant. From these witnesses was elicited the following uncontradicted evidence: A railroad extends through a passageway along the entire length of the pier. The cars on these rails were moved on orders from the lessee. This passageway extends uninclosed six hundred and fifty feet from the shore along the north side of the pier outside of and without passing through sections A and B until it reaches section C where a partition described as a solid bulkhead with a door or gate extends across the pier. Sections C and D are reached without passing inside sections A and B. This passageway and railroad continue for the remaining six hundred and fifty feet through sections C and D. Defendant assumed under its lease to keep the railroad and the passageway as well as every other part of the pier in repair. It had no employees on the pier except those who went there to make repairs, it employed no watchman there, did not operate any of the doors on the pier shed and berthed no boats there. Defendant’s single witness, the pier superintendent employed by the Steamship Terminal Operating Company which held a contract with the Wilhelmsen Line and the Baltic American Line for operating sections C and D, agreed with the foregoing testimony of plaintiff’s witnesses and gave additional uncontradicted testimony. He had full supervision of sections C and D and of the loading, discharge, receipt and delivery of cargoes. He designated the berths for all vessels and he alone designated when and where railroad cars should be spotted. No one else ever did *327 these things. On one occasion he exerted his authority and prevented this defendant from loading and operating cars for its own use. Only such trucks, including trucks owned by defendant, as went upon the pier for the purpose of transporting cargo of consignors and consignees shipped from and landed at sections C and D, were allowed to pass the gate from the outside passage into section C which was guarded by a watchman employed by the superintendent of the lessee’s operating company. No one except him and the watchman had keys to this gate. He controlled its locking and unfastening and designated the persons who were allowed in sections C and D, and had complete supervision over everything pertaining to the management of the pier. The testimony of this witness is not disputed but, assuming that the jury rejected his credibility, the case stands without any evidence produced by plaintiff tending to show even partial control of these sections of the pier by defendant. This part of the pier was private and it was not let for the purpose of being used as a public place. It was, on the contrary, demised for the “ exclusive use ” of the lessee and the general public was excluded. Admission past the gate was limited to those whom the lessee’s’watchman knew to be present on the transaction of business relating to the shipment or receipt of cargo on specified vessels and defendant’s servants who went to make repairs. The unsafe appurtenance of the shed which injured plaintiff was not situated on a common way used by other tenants of the pier but was in a location separated therefrom by a bulkhead and a gate. That part of the railroad penetrating into sections C and D and wholly separated from the inshore sections of the pier was operated by defendant under the direction of and solely for the benefit of the lessee and was under the lessee’s control. That is the obvious purpose of the covenant. The reservation of the right to collect and retain such wharfage as might accrue from canal boats, barges, lighters and other craft temporarily tieing up at this pier does not make the *328 premises public. This provision in the lease merely declares that the fees, if any, which might be paid by small craft occasionally seeking shelter, as they have the lawful right to do at every private as well as public dock or pier in the harbor (Greater New York Charter, §§ 859, 863, 865, 867; Laws of 1901, ch. 466), shall belong to the landlord and not to the tenant. Moreover there is no proof that any such craft ever tied up at this pier. So even if defendant had constructive notice of a defect existing when the lessee took possession of these premises for its private use, the decisions create an exemption from liability. (Campbell v. Holding Co., 251 N. Y. 446, 448; Kilmer v. White, 254 N. Y. 64, 69.) There is no evidence in the case except such as shows that the lessee’s “ possession and dominion were exclusive and complete.” (Cullings v. Goetz, supra.) The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.