The defendant, admitting that he has used the wharf, or dock, mentioned in the complaint, for the purpose of moving certain vessels in his custody as marshal, and that the money due for wharfage, or dockage, is in his hands, sets up a lease of the said wharf, or dock, from the plaintiff to Ward, G-ove & Morris, during the time while the said wharfage accrued, and that the said firm have given him notice that they claim the wharfage in question.
For the purpose of barring such claim, the plaintiff gave evidence at the trial that the said lessees had been dispossessed of the premises, under summary proceedings, instituted by the plaintiff, before the city judge of Brooklyn, for the non-payment of rent; and that the judgment, dispossessing the said lessees, had been affirmed by the general term of the Supreme Court, in the second district, on certiorari. The defendant insists that the city judge had no jurisdiction over the summary proceedings- instituted before him by the plaintiff, because, as he alleges, the wharf, or dock, in question, is not in Brooklyn, but in the county of Hew York.
The local character of the jurisdiction of the city judge is not disputed, hut the geographical situation of the wharf is not so clear. There was no direct testimony at the trial, and no fact has been found by the referee in respect to it. All the proceedings and evidence before the city judge were returned to the certiorari, and although it appears that counsel for the lessees objected to the jurisdiction of the judge, on the ground aforesaid, there is no evidence showing that the wharf, or pier, in question, was not in the city of Brooklyn, *242and county of Kings, or within the line of. low water mark, on Long Island shore.
The counsel for the defendant attempts to show the wharf, or pier, to be within the county of New York inferentially, from certain statutes and known facts, as follows, viz. The county of Kings is bounded northerly by the county of New York. The county of New York contains all the land under water to low water mark on Long Island shore. The pier is at the foot of Sedgwick street, in the city of Brooklyn.
Chapter 484, Laws of 1836, section 2, makes the bulkhead line, to be located in pursuance of its provisions, the permanent water line of the city of Brooklyn, and prohibits the extension of any bulkhead into the Bast river beyond such line. In 1857, the legislature established a bulkhead line, or line of solid filling, and prohibited the filling in with solid material in the waters of the port beyond the bulkhead line thereby established. The evidence does not show, however, where is the line of low water mark, or the bulkhead line established by law. There is a bulkhead at the foot of Sedgwick street, and this wharf, or pier, extends 450 feet into the water beyond, but it has not been shown that this bulkhead extends to the line established by law. It cannot be assumed that the law prohibiting the erection of a wharf, or pier, of solid material, in the water outside of a certain established line, has been violated. There is no necessary sequence, from the statutes referred to, or the evidence in the case, that the premises are not within the city of Brooklyn.
I observe also that the affidavit put in by the lessees to the proceedings before the city judge, upon which the issue joined therein was tried, raised no question respecting the location of the premises, and no evidence was offered addressed to that subject. There is no reference to the subject, in the opinion of the Supreme Court, upon the decision of the certiorari, reported in 14 Abb. Pr. R. 372, (People ex rel. Ward v. Kelsey.) Had such a question been properly raised, it would have called for discussion. The decision of the city judge *243was affirmed, and it does not appear that the lessees have ever sought to question its correctness any further. It was necessary that the lessees should raise the question of jurisdiction, by" clear and distinct evidence, as well as by affidavit upon which the issue in the summary' proceedings was tried, that the premises in question were beyond low water mark, or outside of the line of the bulkhead established by law. Otherwise the question is waived, for the presumption of law is not against the location of the wharf within the city of Brooklyn. The mere dispute, suggested by the points of counsel in the summary proceedings, does not raise the question of jurisdiction.
[New York General Term, June 3, 1867.There is nothing, so far as I can perceive, to prevent the judgment in the summary proceedings, and the affirmance thereof upon certiorori, being held as a conclusive bar to any claim to the wharfage by the lessees of the plaintiff.
The plaintiff was in the quiet and undisputed possession of the wharf, or pier, at the time the wharfage in question accrued, and it does not appear that the lessees have brought any action against the marshal, or made any claim, except by a general notice, although considerable time elapsed before the trial, and also before the action was brought.
The defendant entirely fails to show that the money in his hands is due to any .other person than the plaintiff, or that the lessees have any valid claim to it.
I think the judgment should be affirmed, with costs.
Leonard, J. C. Smith and Ingraham, Justices.]