BUCK V. POST.
249
BUCK
et alp
V. POST
et ol., Dock Commissioners. July 5, 1889.)
(Oircuit Oourt, S. D. New York. WHARVES- DOCKS.
In 1819 the common council of New York city authorized the owner of a sunken crib-dock to rebuild it, and "to add thereto one block and one bridge." A map made in 1828 showed the dock rebuilt and largely extended. the whole of three sections, and complainants' expert testified that the extension was a bridge, i. e., a pier built on piles. Defendants' expert testified that there were traces of an addition. consisting of a bridge connecting the original crib with another, which corresponded with the map. lIe d, that there was no authority in 1843 to build a lJroad platform on piles, which was not a "block, " and could only be a "bridge. "
In Equity. On bill for injunction. Solon P. Rothschild and John M. Bowers, for complainants. F. A. Irish, Wm. H. Clark, and Thomas P. Wickes, for defendants. BROWN, J. The complainants seek to enjoin the dock department of this city from a threatened destruction of a platform landing adjoining the southerly side of pier 24, and connecting that pier with the West \Vashington market. The platform is built on viles, and is several rods in length and breadth, occupying a considerable part of the slip in front of and out from the bulk-head to the south of pier 24. Unle;;s the comprove that they have some vested property right in the platform by grant from the corporation, the defendants have a right to remove the structure; since any mere license to occupy, or acq lliescence in occupation, has been terminated. The special grounds stated by the department for requiring the removal of the structure now have reterence to the public health, which is alleged to be imperiled by the great accumulations of sewage filth beneath the structure. The complainants offer to do anything required to cleanse the premises, and clainl that the alleged cause is but a pretext for interference with their right of occupation. I do not consider that branch of the case, however, since, whatever the reasons for interference may be, the complainants have no right to an injunction unless there is at least probable ground for their claim of a property right in the premiees. If they have not, then their occupancy is an invasion of the public rights of dockage and wharrage facilities within that slip. The plaintiff's' only claim of right rests upon a resolution of the common council, in 1819, as a part of a contract made with Joshua Jones, (who was then owner of a sunken crib-dock, or "block," forming the base of the present pier 24,) whereby the common council authorized him "to rebuild the atoresaid sunken block, and to add thereto one block and one bridge." An accurate map of 1828 shows that dock at that time largely extended, and its previous connection with the old corporation dock at the foot of Vesey street gone. About 1843 the platform was built, which the complainants allege was the" bridge" authorized by the resolution of 1819. The defendants contend that the structure built prior to the map of 1828, as an extension of the sunken
250
FEDERAL REPORTER,
vol. 39.
crib or block rebuilt, forming altogether a pier of about 140 feet in length, exhausted the authority of the resolution and contract of 1819. On a partial hearing of this matter on the 8th of June it appeared to me that the complainants did not make out their -title as alleged; but, considering the importance of the question, and in order to avoid any possible injustice to the complainant, a reference was ordered to Commissioner Lyman to take further proofs in regard to' 'the nature of the structure in question and the meaning of the above-quoted terms in the resolution of the common council. Careful and repeated examination oithe testimony confirms the impression o( the previous hearing, and satisfies me entirely that the structure in question was not authorized by the resolution and contract between Jones and the common council; that the" platform" is not a "bridge," within the meaning and intent of that resolution; and that it was not built nor designed as a bridge, but for different uses. The complainants' expert, through his whole examination, testifies that the extension of pier 24 beyond the rebuilt crib or "bloek" (the terms meaning the same thing) is a bridge; that is, in his sense of the term "bridge," viz., a pier built upon piles. If that opinion is sound, then the building of the extension of the original crib or block to some 90 or 100 feet additional during the 9 years following the resolution of 1819 plainly exhausted the authority to "add a bridge thereto;" and only the power to adll "one other block," that is, crib, remained; and the platform built in 1843 is certainly not a crib or "block." The defendants' expert, however, testifies that there are clear traces of an .addition to the rebuilt sunken dock, consisting of two parts, namely, another crib or block at the western extremity of the pier, and an intervening "bridge" of 66 feet in length, connecting the two cribs or" blocks." This corresponds precisely with the three divisions of the extended pier, as shown by the map of 1828, and with the length of the dIfferent sections of the pier as there marked in figures. This work was done some time between 1819 and 1828, and imports a full nse of the grant or privilege contained in the contrnct of 181 \J. This map of itself atrords very strong presum pti veevidence of the facts. But the evidence of both experts, althongh they differ in sorne points, makes it impossible to find room for any authority for building the broad plat:orrn in question, which was erected in 1843. As I do not entertain any doubt about the mattel', and there appears to me no probability that the complainants could succeed in establishing a title, I ought not to continue the injunction, which is therefore dissolved.
· UNITED STATES. 11. D;B:WEY.
251
U;NlTEP STATES 11. DEWEX
et al.
(Circut"tCourt, S.D. New York. ABATEMENT AND REVIVAL.
July 15. 1889.)
A cause of action against an assig-qee in bltnkruptcy for wrongfully payiugthe asaets in his hands to other creditors of the bankrupt than piaintiff. does not abate on the assignee's d"ath.
At Law. On demurrer to complaint. .stephen A. Walker, U. S. Atty. Wing, &- Putnam, (,Joseph H. Choate, of counsel,) for defendants. 'WALLACE, J. The complaint alleges that the defendants' testator, Barnes, was the assignee in bankruptcy of Vetterlein and another, who were on the 7th of February, 1871, duly adjudicated bankrupts; that the bankrupts were jointly and severally indebted to the plaintiff in the sum of that their estate was insufficient to pay all their debts; that said Barnes had notice of tae demand of the plaintiff at a time when he had in his hands of the estate of the bankrupts the sum of $32,000; that thereafter he paid that sum to the creditors of the bankrupts other than the plaintiff; and that the remaining assets of the bankrupts are insufficient to pay the debt of the plaintiff by more than $32,000. The complaint then alleges the death of Barnes, and the appointment and qualification of the defendants as his executor. The demurrer to the complaint presents the single question whether the cause of action against the deceased assignee of the bankrupts survives against his executors. The action is in assumpsit for money had and received, and is founded upon a breach of duty of the assignee, and therefore does not abate. At common law, even when the cause of action originates in tort, and trover or case would lie, but the facts permit an action of assumpsit, if the plaintiff elects to bring assumpsit, the action does not abate. Hambly v. Trott, 1 Cowp. 373; Wheatley v. Lane, 1 Saund. 217, note; Sollers v. Laurrence, Willes, 421. The property of the bankrupts that came to the hands of the assignee was by force of the statute (section 3466, Rev. 81. U. S.) a trust fund in his hands for the payment of the debt of the plaintiff, and he was bound, as a trustee for the plaintiff, to pay its debt first {Jut of the proceeds of the property. The cause of action is not in the nature of a penalty, but is one which may be enforced as a trust in equity or at law, by an action for money had and received. Beaston v. Bank, 12 Pet. 102; Lewis v. U. S., 92 U. S. 618; Bayne v. U. S., 93 U. S. ,£)42; Field v. U. S., 9 Pet. 182. The demurrer is overruled, with leave .to the defendants to answer within 20 days upon payment of costs.