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App. Div.)

FOURTH DEPARTMENT, JULY TERM, 1903.

HIScock, J.:

Plaintiff, by her complaint, set forth two alleged causes of action against defendant. The first was against him as principal debtor upon a loan of $400, alleged to have been made May 27, 1895, pay. able with interest one year after date, and wholly unpaid at the time of the commencement of the action, except for the sum of $24 paid on or about May 27, 1896. The second alleged cause of action was against him as an indorser with one Zett upon a promissory note for said amount of money, dated upon the day above mentioned, and made by one Sherlock and payable one year after date. Concededly, both causes of action relate to the same transaction and loan of the same sum of money.

The case has been twice tried and has been before this court upon a prior occasion upon appeal by the present appellant. Upon the first trial plaintiff secured a recovery upon her alleged cause of action against defendant as indorser of the note made by Mr. Sherlock. It appeared, however, upon the trial that the note was never properly protested against defendant and this court held that there was no sufficient evidence of waiver of such protest by him as would sustain the recovery.

Upon the present trial plaintiff has abandoned her theory of seeking to hold defendant as indorser and has adopted the other cause of action set forth in her complaint that defendant was the real and principal debtor in the transactions involved and that the loan was made to him. This claim was vigorously disputed by appellant, who claims that in all of the transactions had by him with plaintiff he simply acted as an agent for Sherlock, who was the real debtor and to whom the money was actually advanced and loaned. Upon this particular question the jury has found, as it undoubtedly might upon the evidence, that plaintiff was right in her claim.

Still another issue was presented upon the trial as to whether the loan or note had not become barred by the Statute of Limitations before this action was commenced. The solution of this question was dependent upon the date of a certain payment of twenty-four dollars made upon the indebtedness. The action was commenced July 4, 1902. The loan and note were made May 27, 1895, payable one year after date. In her complaint plaintiff alleged that the payment in question was made May 27, 1896. Upon the first trial

FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

of the case she presented evidence to the effect that the payment was made in the fore part of June, the exact date not being specified. Upon the second trial the evidence presented by her was to the effect that said payment was made in July, 1896. The importance of properly ascertaining which date is correct is very apparent.

The payment was made by defendant to plaintiff's daughter, and at the time of making it he presented to and left with lier for the signature of her mother a receipt for the money in question. Said daughter, who gave the important evidence for plaintiff as to the date of payment, admitted that she fixed such date largely by reference to the receipt.

It may be naturally assumed that said paper, if produced upon the trial, would have thrown much light upon the two sharply defined issues raised as to the identity of the person to whom the loan was. made and as to the time of the payment thereon. We inust assume that said paper would naturally indicate from and on account of whom the payment was received and thereby disclose whether the obligor was Sherlock, as claimed by defendant, or Kohles, as claimed by respondent. It would also quite inevitably indicate the date of payment and thus throw much light upon this point about which plaintiff's evidence has wavered with considerable uncertainty and readiness as seemed best adapted to the exigencies of her case. It appeared upon the trial that said paper had never been delivered back to the defendant, but was in court in the possession of plaintiff's attorneys, who, despite all the considerations which must have suggested its production if containing evidence in plaintiff's favor, did not see fit to produce it. Under these circumstances, appellant's counsel, at the close of the case, requested the judge of the Municipal Court to charge that the jury might “ take into consideration the fact of the non-production of this alleged receipt, referred to by Mrs. Young in her testimony, in determining what the original transaction was and where the truth in this matter lies." This the learned judge declined to do, “because it appears that this paper is here in court and would be accessible," and to which ruling exception was duly taken.

We think the refusal to charge as requested was error for which the judgment appealed from should be reversed.

It is a well-settled rule that under certain conditions a jury in

App. Div.) FOURTH DEPARTMENT, JULY TERM, 1903. passing upon a disputed issue of fact may take into account the failure of a party to produce evidence under his control and which, if he is seeking to maintain the truth, would presumptively be in liis favor and corroborate him. (Kenyon v. Kenyon, 88 Hun, 211;

. Milliman v. Rochester Railway Co., 3 À pp. Div. 109 ; Carpenter v. Penn. R. R. Co., 13 id. 328.)

We think that the facts disclosed in this case brought the receipt mentioned within the rule stated, and that defendant's counsel was entitled to have the jury charged as requested. He did not transgress the limits of the rule adverted to by asking to have it charged that the jury must take into unfavorable account the non-production of the receipt by plaintiff. Upon the other hand, his request was well within the limits in siinply asking to have the jury charged that they might take into account such non-production.

We do not think that the answer suggested by the court to this request met the rule or satisfied defendant's rights. The question was not whether defendant miglit not have secured possession of this receipt. The query was whether the jury might not draw unfavorable inferences from the failure of plaintiff to voluntarily produce that which was under her control and which if so produced would doubtless have thrown much light upon the relations of these parties in regard to the transaction involved.

For the reasons stated we think the judgments appealed from must be reversed and a new trial granted.

Various other reasons have been suggested by the appellant why plaintiff should not be allowed to recover in this case. Inasmuch, however, as a new trial must be had which probably will result in the production of new evidence, we prefer at this time not to pass upon such other questions.

All concurred.

Judgment of County Court and judgment and order of Municipal Court reversed upon questions of law only, the facts having been examined and no error found therein, and a new trial ordered in Municipal Court, with costs to the appellant to abide the event. The form of the order to be settled by and before Mr. Justice HIScock upon two days' notice. HISCOCK

FOURTH DEPARTMENT, JULY TERM, 1903.

(Vol. 86.

THE THOUSAND ISLAND STEAMBOAT COMPANY, Respondent, v.

WALTER L. VISGER and H. WELLINGTON VISGER, Appellants.

Wharf on a navigable rider if constructed without authority from the State it can.

not be used by a steamboat company without the owner's consent if constructed under letters patent reciting a grant for the purpose of promoting commerce the orner cannot give to one steamboat company an exclusive privilege to use it - remedy in equity - effect of the omission from letters patent of conditions contained in prior letters.

Where the owners of prcperty in the State of New York, abutting on the St.

Lawrence river, construct docks extending into the bed of the river, the fact that such docks were constructed without the express authority of the State of New York does not entitle a steamboat company to land its steamboats at

such docks without the consent of the owners. Where, however, the abutting owners procured patents from the State of New

York of the lands on which the docks were built, reciting that the letters were granted “for the purpose of promoting the commerce of our said State and for no other object or purpose whatsoever, and with the reservations and upon the conditions hereinafter mentioned,” one of which conditions was that if the grantees should not “within five years from the date hereof actually appropriate and apply the above described premises to the purposes of commerce by erecting a dock or docks thereon, and filling in the same," then said presents and everything therein contained should “cease, determine and become void,” the abutting owners, by the acceptance of the letters patent, thereby dedicate the docks and so much of the uplands as is necessary for that purpose to the use of all people engaged in general public commerce on the river, subject to

proper regulations and the payment of a reasonable compensation. If the abutting owners assume to execute to a steamboat company a lease of the

exclusive privilege of using such docks, the court will not lend its aid to an attempt by the lessee to exclude another steamboat corporation from landing

at the docks in question. The fact that letters patent, subsequently granted by the State of New York to

the abutting owners, contained no statement of the purposes or conditions for, and upon which, the prior letters were granted, will not be construed as intended to relieve the abutting owners from the obligations created by the acceptance of the prior letters patent.

APPEAL by the defendants, Walter L. Visger and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 22d day of April, 1903, upon the report of a referee, enjoining and restraining the defendants from landing their boats at, and from going or entering for the purpose of soliciting passengers or traffic for their said boats upon, certain wharves upon the St. Lawrence river.

App. Div.]

Fourth DEPARTMENT, JULY TERM, 1903.

Theodore E. Hancock, for the appellants.
Henry Purcell, for the respondent.

а

HISCOCK, J.:

We think that the judgment appealed from is erroneous in so far as it restrains the defendants froin landing their boats at and, for the legitimate and ordinary purposes of their business in connection therewith, entering and going upon the Crossman and Cornwall wharves.

It will be necessary to a proper appreciation and understanding of the legal questions involved upon this appeal to go somewhat into the history of the parties and into a history and description of the wharves over which the controversy has arisen leading up to this. litigation.

The dispute between the parties apparently originated in the rivalries of the steamboat business upon the St. Lawrence river. The plaintiff for several years before the commencement of this action had been engaged in the business of operating a line of steam boats upon that river, carrying passengers and freight and touching at various points, including among others the wharves. already mentioned. The defendants were engaged in substantially the same business, although, perhaps, upon a somewhat smaller scale. The wharves in question are all of considerable size, each being 200 feet or more in water frontage. They run substantially parallel with the current of the river and all of them project beyond low-water mark over and upon the bed of the stream. was constructed by the owner or owners of the shore or upland property in front of such property and extending out into the river. There is no public thoroughfare extending from any of the wharves over and through the adjacent lands, but passage must be had over the private premises of the owners of the wharves.

The Fine View wharf is situated at Wellsley island, and furtherest up the river. The other two wharves are located at the village of Alexandria Bay. There is sufficient depth of water at the latter, so that they are accessible for use by all of the steamers which ply upon the river. The first

mentiored wharf has a lesser depth of water at its side and cannot be used by some of the largest steamers. Each of the wharves is an evolution by extension and addition of

Each one

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