[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 The plaintiff seeks in this action to recover the expense of rebuilding a pier occupied by the plaintiff under an agreement with the city. The case comes up on appeal from a judgment for the defendant on demurrer to the complaint.
We think it very clear that there was nothing in the agreement or lease set out in the complaint, which bound the city to repair or rebuild the pier. So far from there being any covenant to that effect, the agreement provided that the plaintiff should keep the pier in good condition and safe and proper repair, also that all alterations, improvements and *Page 5 repairs, of whatsoever nature or kind, should be made at the expense of the plaintiff, and revert to the corporation at the termination of the lease, without charge or deduction.
The allegation that the plaintiff entered into said agreement upon the representation that substantial repairs would be made by the defendant upon the pier, etc., adds no strength to the plaintiff's case. Such representations could not vary or add to the terms of the written agreement, but were merged in it. The case must depend upon the construction of the written instrument. (Wilson v. Deen, 74 N.Y., 531, and cases cited; Riley v.City of Brooklyn, 46 id., 444.)
The allegation that the city was bound by law to maintain the pier is not sustained by reference to any special law to that effect, unless it be the Montgomerie charter which confers upon the city power and authority to fill, make up, wharf and lay out the lands under water thereby granted to the city. By the general principles of law the duty of maintaining in good repair a structure erected in pursuance of a power granted to the city, is ministerial, and can be enforced by the courts. But the omission to exercise a power thus conferred, to make an improvement, is not a ground of action. (Mills v. City of Brooklyn,32 N.Y., 489.) The allegation in the complaint is that the pier was wholly gone, leaving no pier or bulk-head to be repaired, and rendering the entire construction of a new pier necessary. We think that, under those circumstances, the case is within the principle ofMills v. The City of Brooklyn, and no absolute duty rested upon the city to build a new pier on the same location as the former one. But however this may be, it is also alleged that the destruction of the former pier was owing to defects concealed under the surface of the water and to natural wear and decay, and the omission to make substantial repairs. Assuming that it was the duty of the city to the public to make such repairs and thus maintain the pier, yet the plaintiff had covenanted with the city to keep the pier in good condition and safe and proper repair; *Page 6 and although this covenant might not affect the liability of the city to the public, it certainly is an answer to a claim by the plaintiff against the city for a loss arising from the want of such repairs. That the destruction of the pier was caused, in part at least, by the omission to repair is expressly alleged.
The plaintiff claims that it was not by the terms of the lease bound to repair defects caused by natural wear and decay, its covenant being so qualified as to exclude them. We do not think it is thus qualified, except in regard to the obligation of the plaintiff to restore the premises at the expiration of the term in as good condition as they were in when the plaintiff took possession. In three different clauses of the agreement the plaintiff expressly assumes to keep the pier in repair at its own expense. To the first clause, containing this stipulation, is added the covenant to restore the premises in good condition, etc.; and to this covenant is added the qualification mentioned. In the next clause the stipulation is, that all alterations, improvements and repairs, of whatsoever nature or kind, are to be made at the expense of the plaintiff, and to this there is no qualification; and in the further clause the stipulation is, that the plaintiff will keep the wharves in good condition, and safe and proper repair, including especially the string pieces and other superficial portions thereof for safe usage. To this there is no qualification, but merely a further provision that, on default, the city may make the repairs at the plaintiff's expense. The plaintiff contends that this stipulation should be confined to the superficial part of the pier, but we think the intent is manifestly otherwise. The expression that the superficial portions of the pier shall be included, shows that the obligation covered more than the parts thus included. The purpose of specially mentioning those parts evidently was to protect the city against claims for damages for injuries to persons or property arising from defects in the superficial part of the wharf, and to remove any doubt as to the obligation of the plaintiff to keep that portion in repair, *Page 7 which might arise from the fact that, by the terms of the lease, the plaintiff was entitled only to wharfage, and was not entitled to demand compensation for the occupation of the top or surface of the pier. The specification was not designed to restrict, but rather to enlarge and render certain the covenant to repair.
Taking the whole lease together we think it clear that the plaintiff assumed the burden of all repairs of every description which the pier might need; that, as between the parties, the city was relieved of all obligation to repair or maintain it, and that the only possible effect of the exception of natural wear and decay, was to qualify or restrict the liability of the plaintiff to the city, to restore the wharf in good condition.
This view of the case is sufficient to dispose of it. But we do not intend to pass upon the question whether if it were conceded to be a legal public duty of the city to rebuild, and it were not relieved of that duty, so far as the plaintiff is concerned, by any agreement with it, the expense of rebuilding could be recovered against the city by the plaintiff, in the absence of any covenant on the part of the city to repair or rebuild, or to compensate the plaintiff for so doing.
The judgment should be affirmed.
All concur,
Judgment affirmed.