Kelsey v. Murray

Ingraham, P. J. —This is an action for wharfage. The amount due is admitted. The only question is whether the plaintiff is entitled to recover. Kelsey was the proprietor of the pier as originally built, and leased it to Ward & Gove. During the lease the plaintiff built, adjoining the outer end of the pier, an additional pier, which deprived Ward & Gove of the use of that side of the original pier. The wharfage accrued from vessels lying alongside of the new pier. Ward & Gove move to have the plaintiff amend his proceedings so as to make them parties to this action: 1st. It is not necessary for an entire adjudication of the question between plaintiff and defendant, that these persons should be admitted as parties. All the matters claimed by them can be set up as a defence to the plaintiff’s claim, and unless the plaintiff establishes his title to the wharfage he cannot recover. 2d. If neither the plaintiff nor defendant have asked to have Ward & Gove made parties, they have no right by which they can ask to be made parties for the settlement of a claim of the plaintiff against the defendant. 3d. I do not think an action to recover wharfage can be said to be an action for the recovery of real or personal property. It is for a mere money demand. If an action to recover moneys claimed to be due, is to be considered an action for the recovery of personal property, then third parties may, in all actions on contract, seek to be brought in as parties to such actions where they have a claim adverse to the plaintiff. Such was not the intent of the 122d section of the Code, but it is confined to the recovery of real or specific personal property, but not to an action for the recovery of money. 4th. If it were necessary to pass upon the question whether Ward & Gove have any right to this wharfage, I should hesitate before expressing my opinion to that effect. A similar [298] question arose in the case of Marshall a. Guion (1 Kern., 461, 476), where a proprietor of a wharf claimed a right to the wharfage upon an extension of the original wharf. Dismo, J., says, “If there has been an invasion of the rights of the proprietor in that respect (by destroying the power to collect wharfage at the end of the pier), the law provides an appropriate remedy. That*remedy does not consist in vesting in the proprietor of the rights taken away similar rights arising at another place, and which may be of a very different value from those of which they had been deprived;” and, again, “ the proprietor cannot make title to any part of the extended pier, or to any right of wharfage arising upon it.” When Ward & Gove were dispossessed of their possession in; the added wharf) they ceased to have any claim to wharfage. The motion is denied, with $10 costs.