Board of Commissioners of Pilots v. Frost

4 Daly 353

Opinion

By the Court.

Footnotes

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*—Robinson, J.

—Section one of the act entitled “An act to establish regulations for the port of New York,” passed April 16th, 1857, as amended by chap. 409 of the Laws of 1872, purports to prohibit distinct offenses and impose separate penalties for each. ' The first clause makes it unlawful to throw or cause to be thrown into the waters of the port of New York below Spuyten Duyvil creek on the Hudson river, or below Throg’s Point on the East river, or in the bay inside of Sandy Hook, any cinders or ashes from any steamboat, and imposes a penalty of $50 for each and every such offense, for which the master and owner of such steamboat is made liable.' The second provision enacts that, “ any steamboat using or having any pipe or opening, so constructed as to admit of putting ashes or cinders through the same into the water is made liable to a fine of $50 for each and every time such pipe or opening shall be used for such purpose within the limits aforesaid, after service on the master or owner of such steamboat of a notice by said commissioners of pilots not to use the same, to be recoverable by the commissioners in an action against the owners of such steamboat,” and such “ steamboat (it is declared) shall also be liable therefor.” These provisions are independent of each other, and each rpfers to a particular grievance, which it prohibits, and furnishes a separate and distinct mode of conviction and redress. The proof established the commission of the offense prohibited by the first clause or subdivision of this section, and the liability of defendant as master of the vessel for the penalty imposed. As to the offense referred to in the latter clause, the master is not made responsible. The “ fine ” which it inflicts is only recoverable “ against the owners of such steamboat.” “ and such steamboat is made liable therefor.” How this liability to the “ fine ” is to be enforced against the owners, “ or in ram” against the vessel, it is unnecessary to determine. No such notice as the second clause prescribed was made or attempted to be made as a prerequisite to the offense or liability to the penalty mentioned in the first clause. The evidence, however, showed the commission of the offense first inhibited and the defendant’s liability as master for the penalty imposed therefor. The dismissal of the complaint by the justice for lack of proof of service of the notice required by the second clause was erroneous, and the judgment should be reversed.

Judgment reversed.

Present Bait, Oh. J., Robinson and Loew, JJ.