THE New York Supplement VOLUME 109, AND New York State Reporter, VOLUME 143. CLAFFEY v. MADISON AVENUE CO. (Supreme Court, Appellate Division, First Department. March 13, 1908.) REFERENCE-COMPULSORY REFERENCE FOR TRIAL OF ISSUES-PART OF ISSUES. In an action at law, where the whole issues should not be so tried, the court cannot refer a particular issue for trial by a referee and leave the remainder to be tried by a jury. Appeal from Special Term. Action by Margaret A. Claffey, administratrix, against the Madison Avenue Company. From an order denying a motion for reference of a part of the issues, defendant appeals. Affirmed, with leave to renew the motion to refer the whole issues. Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and SCOTT, JJ. Payson Merrill, for appellant. Richard K. McGonigal, for respondent. INGRAHAM, J. I do not think in an action at law the court has power to refer a part of the issues presented by the pleadings reserving issues to be tried by a jury. The case of Hoffman House v. Hoffman House Café, 36 App. Div. 176, 55 N. Y. Supp. 763, is not an authority to sustain that proposition. In that case it was held that the defendant was entitled under the Code to a trial by jury of an issue raised by the reply to a counterclaim, and that he did not lose his right to such a trial by a reference of so much of the action as involved the plaintiff's claim. In the report of that case it does not clearly appear 109 N.Y.S.-1 and 143 New York State Reporter whether the action was at law or in equity; but, assuming that it was an action at law, the situation was different from that here presented, as in that case the plaintiff moved for a reference of the whole issues, to which the defendant objected, on the ground that he was entitled to have the issues raised by the reply to his counterclaim tried by a jury, and this court sustained that claim. In an action at law there can be but one judgment, and that judgment can only be entered after all of the issues are disposed of. I know of no authority for the clerk or the court, on entering the judgment to which a party is entitled, to be compelled to offset the verdict of a jury on one side with the report of a referee or the decision of the court without a jury on the other, or go through any such computation or offset, and then enter a judgment upon the resulting balance in favor of one party or the other. The provisions of the Code in relation to the entry of judgment provide for several judgments in a case where an action is against two or more defendants. Code Civ. Proc. § 1205. Section 1228 of the Code of Civil Procedure provides for a judgment upon trial by court or referee of the whole issues of fact. In section 1225 of the Code provision is made for the judgment to be taken after certain issues have been tried by a jury; but that section applies only to an action triable by the court when one or more specific questions of fact arising from the issues have been tried by a jury. There is no provision which authorizes the entry of judgment in an action at law, where one issue has been tried by a jury and another issue presented by the pleadings tried by a referee. It seems to me that such a proceeding is quite unauthorized. is contrary to the fundamental principles upon which the trials of actions at law are based, and that in an action which from its nature is referable, or where any issue presented requires the examination of a long account and the court is satisfied, from the nature of the account and the proof necessary to sustain the cause of action, that a trial by jury is impracticable, the court should then refer the whole issues in the action to be tried by a referee. But in an action at law, if for any reason the whole issues should not be so tried, the court has no power to refer a particular issue for trial by a referee, leaving the remainder of the issues to be tried by a jury. It would appear that this action was not to be tried by a jury, and that the court would have been justified in referring all the issues for trial. I think this order should be affirmed, with leave, however, to either party to renew the motion at Special Term to refer the whole issues in the action for trial. All concur. In re PIER OLD NO. 11, EAST RIVER. (Supreme Court, Appellate Division, First Department. February 21, 1908.) 1. EMINENT DOMAIN-COMPENSATION-WHARFAGE RIGHTS. By Greater New York Charter, Laws 1901, p. 351, c. 466, § 822, the commissioner of docks is authorized in his discretion, at any time, subject to the approval of the commissioners of the sinking fund, to acquire property rights in piers, and on approval, as authorized, to negotiate for a voluntary conveyance, and, in case of inability to agree on a pur chase price, he is authorized to direct the corporation counsel to institute eminent domain proceedings. The owner of a pier leased the same, and, pursuant to the lease, the lessee applied to the commissioner of docks for permission to erect an iron shed on the pier, which license was granted on condition that the owner should file an agreement that, in case the commissioner should decide on the appropriation of the pier, no additional value should be allowed by reason of the erection of the shed. The condition was agreed to by the owner and lessee, and after the erection of the shed the pier was condemned. Held, that the owner was not entitled to have the pier valued as a shedded pier, or to have the pier valued as one with an irrevocable license to maintain a shed in perpetuity. 2. SAME-WAIVER. Though, pending the proceedings for condemnation, the comptroller, assuming to act for the commissioners of the sinking fund, sold the shed, it did not amount to a waiver by the city of its rights under the terms of the license, and did not authorize an award for the value of the shed. 3. SAME-AWARD TO LESSEE FOR UNEXPIRED TERM. The lease provided that the lessor should not be responsible for damages to the tenant on the lessor's covenant for quiet enjoyment should possession of the property be taken by public authority, and it was provided that any award made for the property should be paid to the landlord, and further provided that the tenant should receive only such an award, if any, as might be made for its interest and the interest of the tenant in the shed, and that on the expiration of the term, or sooner termination of the lease, the shed should be surrendered to the lessor. Held, that the lessee was not entitled to an award for the unexpired term of the lease. [Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 421-424.] Ingraham, J., dissenting. Appeal from Special Term. Application by the city of New York, acting through the commissioner of docks, relative to acquiring title to and possession of wharfage rights appurtenant to Pier Old No. 11, in the East River. From an order confirming the report of the commissioners of estimate and assessment, Edith C. Iselin and others appeal. Affirmed. Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ. Frederick W. Whitridge (William H. Harris, on the brief), for appellant owners. Michael J. Mulqueen, for appellant lessee. Theodore Connoly (Charles E. Olendorf and Alex. L. Strouse, on the brief), for respondent, city of New York. LAUGHLIN, J. This proceeding was instituted by the city through its commissioner of docks, to acquire the "right and title to and possession of the wharfage rights, terms, easements, emoluments, and privileges appurtenant to Pier Old No. 11, East River, in the borough of Manhattan, city of New York, not now owned by the city of New York, and all right, title, and interest in and to said pier or any portion thereof not now owned by the city of New York, and all wharfage rights, terms, easements, emoluments, and privileges appurtenant to the easterly one-half part of all that certain bulkhead, dock, or wharf property on or near the southerly side of South street, in said and 143 New York State Reporter borough and city, between the easterly side of Pier Old No. 10, and the westerly side of Pier Old No. 11, East River, not now owned by the city of New York, for the improvement of the water front of the city of New York, on the East river." The title to the property vested in the city by nature of the proceeding on the 15th day of January, 1905. By letters patent from the people of the state of New York, duly executed by the Commissioners of the Land Office, pursuant to authority of the Legislature, on the 28th day of September, 1871, the city acquired title to the land upon which this pier and bulkhead have been constructed. The pier in question was constructed by the owners of water lots on the East river lying immediately to the south of Old Slip, pursuant to an ordinance of the common council passed on the 1st day of June, 1801, and it has been extended and rebuilt pursuant to subsequent resolutions. The appellant owners have succeeded to the rights of the parties owning and interested in the pier bulkhead, and at the time title vested in the city they were entitled to maintain in perpetuity a pier and bulkhead of the dimensions they then existed, and were also entitled to free and unobstructed use of the easterly side of the pier as a berth for vessels to be fastened thereto; but they did not own the bulkhead on that side of the pier. The commissioners awarded to the owners the sum of $184,329.99, but made no award to the appellant lessee. At the time title vested in the city, the property was in possession of the appellant lessee, under a lease in writing from the owners, bearing date the 1st day of November, 1902, which was for a term of 15 years and 3 months, commencing on the 1st day of February, 1903. The rent reserved was $11,500 per annum, commencing on the 1st day of May, 1903. It was expressly agreed in the lease that the tenant should immediately, after the execution thereof, make application to the board of docks for a license or permit to erect and maintain iron or steel sheds on the pier and bulkhead, and in the event it should be unable to obtain the same prior to the 1st day of February, 1903, the lease should become null and void, but that, if the license or permit should be granted, it should thereupon forthwith proceed with the erection of the sheds at its own cost and expense, and should keep them in repair during the term, and should then, or on the sooner termination of the lessee, surrender them to the lessors. and they should become the property of the owners. The lease contained further provisions material to this appeal, as follows: "And it is hereby further covenanted and agreed by and between the parties to these presents that in case the board of docks or other constituted authority now existing or to be created by law shall take possession of said demised premises the said parties of the first part shall not be held liable for any damages whatever sustained by the party of the second part (the tenant) by reason of any action of said department or public authority affecting the quiet possession of the said demised premises and in the event of said demised premises or any part thereof being taken in condemnation proceedings during the term of this lease it is further agreed that any award made therefor shall be paid to the parties of the first part (the owners) and the party of the second part shall receive only such award if any as may be made in such proceedings for its interest in and under this lease and also the interest of the party of the second part in the shed or sheds upon said premises which shall be deemed for that purpose to be one-fifteenth of the amount awarded as the value of such sheds for each unexpired year of said term and proportionately for each fraction of a year. And the said parties of the first part do covenant and agree that the said party of the second part, its successors and assigns, on paying the said rent and performing the other covenants aforesaid shall and may peaceably and quietly have, hold and enjoy the said demised premises for the term aforesaid without molestation or disturbance of or from the said parties of the first part, their heirs or assigns, subject nevertheless to the action of the government of the United States or of the state of New York, of the city of New York or other authority created by them respectively as hereinbefore expressed." The lessee duly applied for the license or permit pursuant to its agreement, and apparently at the same time it and the owners applied to the commissioner of docks and ferries for a lease of the land under water in the easterly half of the slip between Piers 10 and 11, extending from the bulkhead as it existed at that time to the new bulkhead line adopted by the board of docks on the 3d day of November, 1899, for a term of 10 years from the 1st of February, 1903, with the privilege of renewal for a further term of 10 years, at a specified rental, and with the privilege of erecting and maintaining upon the land under water a pile platform, with shed thereon, the same to be erected in accordance with plans and specifications to be submitted to and ap proved by the commissioner of docks. It appears by an order-so designated of the commissioner of docks and ferries, under date of December 16, 1902, that the commissioner agreed to lease to the appellant lessee the lands under water in the easterly half of the slip between Piers 10 and 11, as herein stated, upon certain conditions therein specified, among which was a condition that, in case the land should be required for improvement under the new plan, the lessee should, when so ordered by the commissioner, remove any and all structures erected by authority of the lease, and should make no claim or demand for the value thereof. This order also granted the application for a license or permit to construct the shed, in the following language: "Permission be and hereby is granted the owners of Pier 11, East River, to erect a shed on said pier in accordance with the rules and regulations in such cases made and provided, and in conformity with plans and specifications to be first submitted to and approved by the commissioner of docks, all the work to be done under the direction and supervision of the engineer in chief of the department of docks and ferries. It being understood that this permit shall be of no force or effect unless the said owners or their authorized representatives shall file in this department a written agreement, to be approved as to form by the corporation counsel that in the event that the commissioner of docks shall decide that said pier is needed for the improvement of the water front that then and in such case no additional item of value shall be claimed or allowed by reason of the erection of a shed on said pier, and that no additional item of value shall be claimed or allowed beyond the value of the pier if no shed had been erected thereon, in any proceedings being instituted for the acquisition of said property either by purchase or condemnation." The owners and lessee, by a letter under date December 26, 1902, addressed and delivered to the commissioner of docks and ferries. signed by their duly authorized attorney, reciting the order of the commission granting the lease to the appellant lessee and the permit for the erection of the shed in hæc verba, expressly accepted the lease |