People v. Prillen

Ingraham, J.: It appeared from the evidence that the defendant was employed by a corporation, a contractor acting under a contract with the United States government in removing a ledge of rocks in the East river. In the performance of this contract the contractor had two scows that were anchored over the ledge of rocks, and upon each of these scows there was a- boiler used to supply steam to the — 208 — steam drills. These boilers were in charge of a licensed engineer and the defendant was a fireman who had charge of the boilers in the absence of the engineer. The defendant had no certificate from the police department of the city of Hew York as required by section 343 of the charter (Laws of 1897, chap. 378 as amd. by Laws of 1901, chap. 466). At the time of the defendant’s arrest he was in charge of the boiler upon one of the scows, in the absence of the engineer, there being no other fireman present. He ' attended to the fire, kept up the steam, and was generally engaged' in operating this particular steam boiler which was then in use to generate steam for the work. Section 343 of the charter of the city of Hew York provides that “ it shall not be lawful for any person or persons to operate or use any steam boiler to generate steam except for railway locomotive engines, and for heating purposes in private dwellings, and boilers carrying not over ten pounds of steam :and not over ten horse-power, or to act as engineer for such purposes in The City of Hew York without having a certificate of qualification therefor,” and a violation of this section of the charter is made a misdemeanor. (See § 345.) The vessel upon which the boiler in question was located had no motive power and was not used for the purpose of navigation. It was used in the performance of the contract with the government by the defendant’s -employers in removing this ledge of rock in the East river. Heither the engineer in charge of the work nor the defendant had a license from the United States government, nor is a United States license required to run a stationary plant anchored in a navigable stream. Ho question is, therefore, presented as to the right of the city of Hew York to require a license from persons operating boilers upon vessels engaged in navigation when the engineers and firemen so engaged are licensed under the laws of the United States. We have here a stationary boiler used for a purpose entirely distinct from navigation and over which the government of the United States has asserted no control. I can see no •difference between this case and a case where the boiler was placed upon the shore and steam carried to the work by pipes. The contractors while engaged in this work were subject to the police regulations provided by the State for the protection of the community. If this boiler had been, as before suggested, upon the upland and — 209 — the steam had been carried to the drills by pipes, I suppose there would be no dispute but that the police regulations for the use of such boilers would be binding upon the contractors, and I can see no distinction between such a case and the case where the boilers themselves were upon scows floating upon the water and anchored over the reef to be removed. The defendant, however, claims that under the charter the waters of the East river are not included within the city of Mew York. Prior to the enactment of the new charter it is conceded that the East river at the locality in question was a part of the city and county of Mew York. By section 1 of the Consolidation Act (Laws of 1882, chap. 410), it is provided that “the city and county of Mew York shall contain * * * all the land under water within the following bounds,” and there was included all the land from the low-water mark on Long Island to the west bounds of the State which would be to the low-water mark on the west side of the Hudson river. Thus, the city and county of Mew York includes the whole of the rivers and harbors to actual low-water mark on the opposite shores. (Stryker v. Mayor, 19 Johns. 179 ; Atlantic Dock Co. v. City of Brooklyn, 3 Keyes, 444; Orr v. City of Brooklyn, 36 N. Y. 661.) By section 1 of the charter it is provided that “ all the municipal and public corporations, and parts of municipal and public corporations, including cities, villages, towns and school districts, but not including counties, within the following territory, * * * are hereby annexed to, united and consolidated with the municipal corporation known as the mayor, aldermen and commonalty of the city of Mew York to be hereafter called ‘The City of Mew York’ and the boundaries, jurisdictions and powers of the said city of Mew York herein constituted, are for all purposes of local administration and government hereby declared to be co-extensive with the territory above described.” Here all the municipal corporations within the specified territory were “ annexed to, united and consolidated with ” the municipal corporation theretofore known as the mayor, aldermen and commonalty of the city of Mew York and was to constitute the new city of Mew York. When these outlying territories were thus consolidated Avith the existing city and the consolidated district organized into a new city, it would follow that — 210 — the new city thus created included the municipality formerly known as the mayor, aldermen and commonalty of the city of New York with the localities thereto added. Adopting the construction of this section urged by the defendant, the new city of New York would not include any portion of Manhattan island or any portion of the territory which formerly constituted the municipal corporation known as the mayor, aldermen and commonalty of the city of New York. Séction 2 of the charter divides the city of New York into five boroughs, and the land under water in the East, Harlem and Hudson rivers does not seem to have been included in either of these boroughs; but as this division into boroughs was for purely administrative purposes, and as from the necessity of the situation the land under water in these rivers would not be subject to the administrative control for which the boroughs were provided, it might well be that it was not considered proper to include the rivers, or the New York harbors within the boundaries of either of the boroughs, leaving the control of such waters and the land under water to the authorities of the whole city. There is nothing, however, in this section which bounds the different boroughs to override the express provision of .the 1st section which consolidated several municipal and public corporations into one corporation constituted foi' all “ purposes of local administration and government hereby declared to be co-extensive with the territory above described,” which included the territory which had prior to the adoption of the act been included within the boundaries of the municipal corporation known as the mayor, aldermen and commonalty of the city of New York, and this conclusion is confirmed by subsequent sections of the charter. Section 3 provides that the name of the corporation constituted by “ this act shall be ‘ The City of New York ’ * * * with all of the rights, properties, interests, claims, demands, grants, powers, privileges and jurisdictions, held by the mayor, aldermen and commonalty of the city of New York, and held by each of the municipal and public corporations or parts thereof other than counties by this act united and consolidated with the corporation known as the mayor, aldermen and commonalty of the city of New York;” and section 4 provides that “for all purposes the local administration and government of the people and property within the territory hereby comprised within The City of New York — 211 — shall be in and be exercised by the corporation aforesaid; ” and section 8 provides that “ to carry out the scheme and purpose of this act, all of the public buildings, institutions, public parks, water works, and property of every character and description, whether of a public or private nature, heretofore owned and controlled by any of the said municipal and public corporations or parts thereof, hereby consolidated into The City of New York, including any and all such property owned by the county of New York, the county of Kings and the county of Richmond, wherever situated, and by the county of Queens situated in that portion thereof which is included within the limits of The City of New York, as constituted by this act, and all the right, title and interest of the said municipal and public corporations and counties as aforesaid, or any of them, in and to such property, are hereby vested in The City of New York.” These provisions taken together clearly show a legislative intent to include within the boundaries of the new city all of the territory whicli was included within the municipal corporation known as the mayor, aldermen and commonalty of the city of New York and to give to the new city the same jurisdiction and control over all of the said territory that was before exercised by the various municipal corporations that were consolidated to form the new city. Section 864 of the charter is a re-enactment of section 803 of the Consolidation Act and was not intended to make a distinction between the port of New York and the territories over which the city had jurisdiction. That section is a part of chapter 16 of the charter which relates specifically to docks, piers, harbor, port and waters, and gives to the department of docks and ferries jurisdiction over all the water front, wharf property, lands under water, wharves, piers, bulkheads and structures thereon situated within the city of New York as constituted by the charter. This chapter contains many provisions regulating commerce within the port of New York and the provision is that the port of New York wherever the same “is mentioned or referred to in this chapter shall be deemed and taken to include, unless otherwise expressly stated, all the waters o.f the North river and East river and the harbor embraced within or adjacent to or opposite to the shores of The City of New York as constituted by this act,” the object clearly being to extend the limits of the port of New York so as to include all — 212 — the waters adjacent to any of the territory included within the city, not to restrict the jurisdiction of the city of New York over all-of the territories which were included to forra the new city. Its provisions were confined to the chapter which regulated the commerce of the port. It would, therefore, seem to follow that the jurisdiction of the city of New York for all purposes of municipal control and for the regulation of the police power extended over all of. the North river and the East river from the low-water mark to the opposite shores, and this being so, the provision of section 343 of the charter applied. The learned counsel for the defendant also claims that this regulation, if applied to a boiler upon a scow such as the one in question, would be a burden upon commerce, and, therefore, should not be included within the provision of this section; but we think it clear that extending the operation of this section to a boiler such as the one in question would have no possible relation to commerce, or vessels engaged in navigation. ’ This scow in question was not engaged in commercial business, and the boiler in use and which was operated by the defendant had no relation to commerce. It was a stationary boiler for the purpose of generating steam to be used in a blasting operation. It had no more relation to commerce than a boiler on land used for the same purpose, and whether it was located upon the upland, upon one of the ‘ docks or piers of the city, or upon a scow anchored in the stream, it was a stationary boiler used in the performance of the work of blasting, and not in navigation. The requirements as to engineers and firemen upon vessels engaged in commerce or navigation are regulated by the laws of the United States, and over such engineers or firemen the State of New York has attempted to exercise no control. This regulation in question is clearly intended as an exercise of the police power to apply to those in charge of steam boilers or steam engines within the city of New York where the same are used for the ordinary purposes over which a municipal corporation has control. It has such control over boilers used for generating steam for blasting purposes, and we think it was clearly intended to bring a boiler used, either upon land or water, within the territorial limits of Now York, when used for this purpose, within the provisions of this section. — 213 — It follows that the judgment appealed from should be affirmed, with costs. Yan Brunt, P. J., Patterson, IIatoh and Laughlin, JJ., concurred. Judgment affirmed, with costs.