(dissenting) ;
Plaintiff’s intestate, a boy seventeen years of age, on the 26th day of July, 1903, went out with a party in a tugboat for a pleasure excursion. The party boarded the tug by means of rowboats, but on returning the water was rough and the captain of the boat landed at á pier on the shore of the East river, the property of the defendant. Plaintiff’s intestate stepped out upon the dock, took a step forward and disappeared through a hole in the dock. lie was not-again seen alive. From a judgment of nonsuit the' plaintiff appeals to this court.
. The dock in question was originally owned by private parties. It was purchased under legislative authority by the county of Kings for the purpose of constructing what was known as the Shore road, and subsequently came into the ownership of the defendant through the provisions of the .Greater New York charter. The pier in question has not been held out as a public pier at any time since it came into the ownership of the defendant or its immediate predecessor in title ; it appears to have been left substantially as it existed at the time the property was purchased ■ from the original owner, subject to the action of the elements, and with no purpose on the part of either of the municipalities to make any use of it as a dock, *398or for public purposes. It' came into the ownership of the defendant merely as an;-incident to its parkway system, and was apparently considered of no practical utility*,, and 'the fact that .persons have fished from this dock, or that two contractors,; under permits from the park'commissioners, have, used the dock for a- temporary purpose, does not constitute this, a public dock* nor does it hold out an invitation for its, use. by the public. Under the facts disclosed .by the evidence there was no liability on the part of the defendant, and the nonsuit was properly granted.
Jerks, J.,.concurred.
Judgment reversed and new trial granted, -costs to abide the event.-