# Reply Brief — New Jersey v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0038%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1931 - **Citation:** 283 U.S. 473 ## Text ‘ . 3 e i en . 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OF NEW YORK, eae : Be. Pais peo _ Defendant. ' ty a : TOE at wee | ' - - — a | BRIEF ‘OF DEFENDANT IN REPLY TO ge PLAINTIFF'S BRIEF. “ali ARTHUR J W. Hity, * Corporation Counset of the City of _ New York, ae Solicitor for the Defendant. Etizor S. Benepicr, J, Josepn Linzy, . ‘THomas W. A: Crowe, . Of Counsel. —_——__ \ (22102) "Pandick Press, Inc., 22 Thames St., New York, U. S. A. aS. ae - ; SSTATBMBME snnccssagecisnscehepecccvconsenpipsanesscoevesepiess Sedsdsbendbejeates ares ARGUMENT: : 1. Replying bs plaintiff's. Tiebrarien that Bross inp Court Das Juplodiction asinine cccscsocecccoossdtetecieliaita. adh ; 2.8 aay (a). Because the suit is one to protect ihe’ | . quasi-sovereign rights of the plaintiff... = 2 (b). Because the defendant is before the SPOOR ORE E EEE HEHE EOE EE HEHE SEES SEES EEE eeEs (ec) The property affected is ns eitlile the United States.......0.0.00:... ipdiaiibeiatacce vosseet 8 2. Replying to plaintiff? S argument that. de- fendant’s garbage dumped more than a marine league from the New Jersey shore is driven by the winds upon plaintiff’s beaches. and. into its adja- cent waters, thus creating a public nuisance, ‘to the great injury of plaintiff” s rights and property:. “CEN ae ' 3. Replying to plaintiff” s argumierits that com- pliance by the defendant with 29° Stats. 209, as amended, and permits issued thereunder -by the Supervisor of the Harbor of New York, does not: ' -relieve defendant from the effett of the public | Ws nuisance created by its dumping. es REL? EE iskeesshs Ss 4, Replying to plaintiff's sib that such garbage and refuse as reaches the plaintiff’s shores by’ dumpings ities coastwise and other vessels and (he 2 iw \e other sources is negligible in comparison with that . PAGE dumped by, defendant and reaching’ plainitiff’s ’ - shores and constitutes no defense to the plaintiff's complaint. ....... seeCeeececennannnssnenaseneenetseesees wa sovesensssonseceseee ‘ to some particular’ exceptions to the Master’s Report ............ ertesuodbapages hbctbosinndebin Se REL eae ConcLusion. ‘We renew our prayer for action ' cy “. 3. 5. Replying to plaintiff's contentions in regard , _by this Court set forth at-the end of our-main brief | 4 Tapie or Cases Crrep. ) : Ee re PAGE . “Commonwealth, Cuitter, 156 Mass. OER, 26 Ellenwood v. Marietta Chair Co, 158 U. 8. 105, 108. 4] : Higginson v. Treasurer of Boston, 212 Mass. 583, 585 26, \ Kansas v. Colorado, 206 U. S. Oe Oh a3. } Kuehn v. Milwaukee, 92 Wisc. 263, 65 No. W. 1030... Se ae _Lefrois v. ‘County of Monroe, 162 N.Y. Pibalciiersisinas ore : People v. Central R. R. of: New Jersey, 42 N. Y. 283, 289, Writ Dis. 12 Wall. 455... tt ndhoscoheontotass = ha diel oy _ Prigg vw: Pennsylvania, 16 Peters 589. idiineidese 7 % Rhode Island (State of) v. Massachusetts (State of); re 12 Peters 657, 720, Lies Measecpiedptnenlntiosoesenhosapinciadtoot ccdcnsecs, a Ome | United States v. N ewark scaies ma a 173 Eed. : 426, sigh RES AE ABOU RON CP EY SS ea ea. : TapLe or Unrrep Staves Srarures Crrep. ‘25 Stats. 209 as amended (Title 33, Chap, 9, Secs. 441, 443, 449, veka, |) OEE UR eer 2, 6, 7,21, 29 43 Stats. 604 (Oil Pollution Act) (Title 33, ‘Chap. 9, Sees. 431-437 U. S. Code) ene neiots SES AMEE Ore an (See. 433 of this Act j is set forth in eee ye pp: 100-101, Main Brief. ) 30 Stats, 1152 —— 33, Chap. 9, See. 407, U. Ss. Code) 21, 29 - Court ice Crrep. Bauity Rule XXX v. S. bate ears Court... Kans pig | Ne ee Ld $ , 4 st oe > o , : oe cee ee Documents’ Crrep, pox pas ‘ | | PAGE Joint Sesahtution of Congress 1922 on Oil Pollution of Waters sod Ril acsauds RET OOO And ERE Agta Pitemeesetal 12, 13. Engineer’ s ‘Becert on Long Branch Sewer System : : (Deft.’s Ex. 10)........... faecnticeetentanil ce dois a cuatcel nasa s, 23 oot . APPENDIX. : List. of Defendant’s Exceptions and | places in Mies is Brief where: discussed............. Porn) siesta see 28. 29 ° ° - 8 / “ ° e a . \ = RS ° ye a , e . r ag e P “7 ' ‘ e . . '¢ e Pus a ie : IN THE soot i — Hupreme Court of the United States : -. Ocroper Term, 1930, Ee “s No. 17, Ontcrnan. Stare or New JERSEY, ; «Plaintiff, . against _. : Tue Crry or New York, es. Defendant. — BRIEF OF DEFENDANT. IN REPLY TO. PLAINTIFF'S BRIEF. Statement. r ae Defendant’s reply to plaintiff’s: brief in support of the report of the Special: Master will follow the order of such F brief, which in tarn follows the order of defendant’s excep- . tions to. that report. Our points in this brief will, there- ~ fore, follow the group of headings or. points of defendant 5 “argument”, Sot, RE aie ee > (We are compelled, however, at the start to call atten-- tion and except to a statement in plaintiff’s brief as to the | claims of the defendant appearing in the first paragraph of page 2 of -said brief. It is there stated—presumably : referring to the amended answer—that it alleged ‘‘that this’ ' _ Court had no authority to- enjoin such dumping because it | was done on the ‘high seas’ ””, Defendant did not? SO. contend. The first defense in the amended answer alleged Be oe a he Sec a > Re Seta ; . - > ie a ee atin . is PoOOx \ ° 7 iN i . ; ces ‘ F \ > > 2 that the garbage dumpings of the defendant were made in the Atlantic Ocean under permits from the Supervisor of i New York Harbor, issued in accordance with the provisions “of 25 Stats. 209, now Title 33, Chap. 9, Sees: 441, 443, 449, 451, U. S. Code, at points 8, 12 and 20 miles southeast of & Scotland Lightship, and 10, 12% and 2 2 miles distant from 3 . ' * . ° Dictate hceeerio: bi cea ea Sa onan the.shore of New J ersey, and that in view of such dumping on the high seas in the manner and at the points afore- said this Court has no autliority. to enjoin defendant from dumping its garbage and refuse i in the manner and at ‘the ie mentioned. The term “high seas’’ as is well known ‘includes waters on the sea coast -without -the boundaries of low water mark’’—In re. Ross,.140 U: §. 453, 471. It awas, therefore, not because defendant?s dumpings were made on the high seas solely, but bécause they’ were’ made in such seas more than a marine; league from plaintiff’s - shores, that. the jurisdiction of this Court was challenged . in - case.) - .- 3 ° “ARGUMENT. 1. Replying a plaintiff’s argument that this Court has jurisdiction: : ieee ( a), Because the suit is one to protect the quasi-sov- ereign rights of. the plaintiff: Plaintiff introduced its, contention: by a quotation from Kansas vs. Colorado, 206 U. S. 46, at p. 85. Since plaintiff . ~ refers to that case as an authority favorable to it, we 3 should like to quote from page wi of the report the state- ment that:: ‘cee * ‘it (the judicial power) must betheld to - embrace all controversies of a justiciable nature * fy, 3 arising within the territorial limits of the. Nation, no matter -who may be parties thereto.’’ (Italics those of the writer. ) A sfateinent i is then made’in the brief (p. 5): ‘*The principal issue raised by the pleadings is whether the acts complained of create a public nuis- : ance.on the lands and waters of the plaintiff.’’ ~ Doubtless plaintiff would like as have the Court so con- sider the problems presented herein. _ However, a reading of our main brief should convince the Court that the above . “is a wholly incorreet interpretation of the issues or their 3 ‘importance. . The principal issues are whether this Court ' has power to restrain defendant’s acts in this ‘case and whether, if it has such power,-the plaintiff has proved the defendant ‘guilty of causing the alleged nuisance. _ Generally speaking, we do not argue that'the plaintiff has not propriétary rights to the shore and in its territorial’ waters for - -a distance -of. three nautical miles from such shore; or that it has no right to sue in’ its character of . parens aiapes, if the proof of defendant’ 8 esponsibility warrants it. (b) Because the defendant is before the Court: Plaintiff contends (p. 11) that because ‘the defendant | accepted the jurisdiction of‘ the Court by not specifically raising the question in its original, answer, and-having thus accepted the same for more than. a year ‘‘it. cannot now. raise the question”. We will assume that anything said ‘in a written argument in a case of the importance of the © q one at bar must be taken seriously even though its intrinsi¢ a importance may be doubted. : By way .of reply, we say that in the first eas the - &* ‘ Court allowed coemadant to amend 0) as to specifically pre- * SX WP SOIT ey RAS RRR ARENAS TITS MOP O-PS Beene premenermeT oe Pg > " . . » . 4 sent: the question of jurisdiction over a strenuous similar objection by the plaintiff. In the second place, it is ele- ‘mental that parties cannot confer jurisdiction by consent where questions POV tg to. the subject matter of the controversy are’: involved. State of Rhode che vs. State of icons setts, 12 Peters, 657, 720; Peoplé vs. Central Railroad of New Jersey, 42 N. Y., 283, 289 (Writ of Error dismissed + aa Wall. 455); Ex parte, ' Schiollenberger, 96 U. Ss. 369, 377; Ellenwood 1 vs. Marietta Chair-Co; 158 U. S.,, 405, 108. ee Riode Island VS. Massachasetia; supra, is: such a‘land- © mark in the history of the power of this Court on the ques- ’ a tion of original jurisdiction in suits between states that we - trust we ‘will be pardoned if} we quote from it at. length. This was an original. suit in the Supreme Court brought : by Rhode Island against Massachusetts to determine the boundary line between the two States at.a certain point. The opinion of the Court was delivered by Mr. Justice Baldwin. In the course thereof it. is.said. in respect to - the powers and jurisdiction of this Court in reference to "Suits, of.this character (page 7 20): . “But as this-court is one of limited and special original jurisdiction, its action must be confined to the particular cases, aontroversies, and parties over R which the constitution and laws have ‘authorized it po ae act ; any procéeding without the limits prescribed, -. is coram non judice, and its action a nullity; 10 Pet. . — 474; S. P. 4 Russ. 415. And whether the want or — excess power is objected by a party, or.is ape : —————— 5 to the court, it must surcease its action, or proceed extrajudicially. (Emphasis the writer’s.) * * * Those States, in their highest sovereign capacity, in the convention of the people thereof ; on whom, by the Revolution, the prerogative of thé crown, and _ the transcendent power of parliament devolved, in a plenitude unimpaired by any act, and controllable "by no. authority, 6 Wheat. 651, 8 Wheat. 584, 88, adopted the constitution, by which they respectively made to the United States a grant of judicial power over controversies between two or more States By ~ _. the constitution, it Wwas-ordained that: this judicial | : ____,— power, in cases where a State was a‘party, should — _ be exercised by this court as one of original .juris- — diction.. The States: waived their exemption from Judicial power, 6, Wheat. 378, 80, as sovereigns by: 4 | original and inherent right, by their own grant of its ~. | exercise over themselves in such cases, but which / . they would not grant to-any inferior tribunal. . By this grant, this court has acquired jurisdiction over - the parties in this cause, by, their own consent and delegated authority; as their agent for executing the judicial power of the United States in case é specified. ’’: - On the question of the original power of this Court to deal with’ suits such as the present, between a state and: 4 citizen of another state, we submit ‘that what is said. : . + above is. applicable in the instant case. In other words, this Court has the Jurisdiction which the States in their capacity as sovereign nationis, in adopting the Constitution, > had to give to it. If the original States in interpreting-the powers of their courts under the common law had no power _to restrain a nuisance committed outside their boundaries, they could not give any such power to this Court to adjudi- -.eate the rights of ‘the parties to litigations involving such, 2 | 5 2 ' h ; ) 4 6 questions, That they did not have: such. powers is ‘dis- cussed in the cases set, forth in our main 1 brief-from pages — 28 to 33. i ee “On page 11 of plaintiff's brief, it is ae said that the contention of the defendant that this Court has no jurisdie- tion bevause of the fact that garbage dumpings are made _ more than three miles from New Jersey’s shores is incon- sistent with its contention that it dumps its-garbage under * ‘permits authorized by Act of Congress of June 29, 1888 * (25 Stats. 209), and that they cannot be legally united by the defendant. ea ax _.’ It,seems to us that it is a sufficient reply to this argu-. ment ‘to quote Rule XXX ‘of the United States Supreme Court Equity Riles which states that: “The answer May stato: as many defenses, in the alternative, regardless of consistency, as the de- fen@ant deems essential to his defense. ” Argument in this regard i is also set forth at Eee 68 and 69 of our maiin:brief. Whether permits, are necessary to do ee dumping: as. defendant does we do. not know. ‘Defendant has never . taken the position that they were not. _ How far beyond ; the lines of New ‘York Harbor, as laid down by the Secre- ‘ ‘tary of the Treasury (United States v. Newagk Meadows - Imp. Co.; 173 Fed: 426, 428), the Supervisor’ s jurisdiction over dumping into the ‘‘adjacent waters’ ’ extends has never been established although it seems to have been held in one or more cases cited by the Special Master on pages - 45-47 of his report that stich jurisdiction extends beyond the three mile limit. ‘ However; it does appear in this case - that the Master ‘ did find that defendant had not violated the permits (unless 7 the finding on page 50 of his report that some garbage which “remains on the scows after dumping is cleaned off as they ‘are being taken back from the dumping area’’ can be so On page 12 of the brief plaintiff states that “Congress - .and the Supervisor of the Harbor have exercised *,unchal- | : -lenged by defendants since 1918, a sustained jurisdiction - 3 -over the dumping grounds: used “as navigable waters -of the United States’’, and defendant caniot’ now challenge such jurisdiction, citing Prigg vs. Pennsylvania, 16 Peters, 539. eae be consideréd valid (p. 621). ite ” ‘We ask, however, if plaintiff’s contention is sound, why ‘did not the Master make a specific finding to that effect as a matter of fact or law? Ofice again, we refer to State of All this case holds on this subject is that.an Act of - Congress, which: has been upheld by the decisions of vari- ous high State courts and by governmental officials, must. after'a long period of judicial and practical construction | Rhode Island vs. State of Massachusetts, supra, at page ~ (29, where it is said, ‘that the boundaties of the: United States were the external boundaries of the several states’”. ” _ Plaintiff’s argument really reinforces our own, namely, — - that the matter of dumping is within the regulation of Con-~ | gress either under (possibly) 25 Stat. 209, as amended, or some provision yet to be enacted if thought necessary. De-- fendant has not been found to be violating 25 Stat. 209, . . as. amended, and as yet there is no other appropriate legislation. — : “ NG -, Other arguments on pages 12 and 13 of plaintiff’s brief are sufficiently answered on pages 36-38 of our main brief, fs RY er vagy ts ren ty : “interpreted. It is not’so specified and we say it cannot be, | in view of the finding on page 43 **that the dumping was by . permission of the Supervigor of the Hatbor’’.) a except that we might-add that'in Lefrois vs. County of _- Monroe, 162 N. Y.'563, where it was held that the deféndant _ -eould not be restrained at. the suit of a neighboring farmer from permitting sewage to escape from its almsheuse on to his farm, it was said that the alleged ‘nuisance might be enjoined i in an action against the Board of Supervisors of ~ the County, sp /iiaels in control of the building. ; (c) The Property affected is within the United States. te 3 This subject i is treated also at page 28 of our original brief t (and supra), and nothing further need be added here. 4 % en’ ~ 4 \ 7 ae ats i MA iss 2 e Rapibine to plaintiff's argument t that defendant's garbage dumped more than a marine league from the.’ New Jersey shore is driven by the winds upon plain- tiff’s beaches and into its adjacent. waters, thus creat-— ‘ing a public nuisance, to the great injury of plaintiff's rights and property. PaaS On page 15 of its brief appear these statements: 4 The practice (of dun ing its garbage and ref- use at sea) was discontinued from: that year (1896) until 1903 when it was resumed until 1906. sat ort i There are no refaroitves given as the source of this state- a ment and: no finding i in accord therewith was made by the . 4 Master. Defendant’s witness, Greene (Pr. A. 566-567), tes- tified that the Barren Island Disposal Plant broke down in — 1903 and for. a short period of two or more months garbage - had to be taken to sea. The abstract does make him state: that ‘“from 1906 to: 1918 no garhege was. sent to. sea by . are = the City of New York’. " However, if the _stenographer’s ss minttes at page 1707 are consulted, it will be found that Greene’s testimony was ‘due to the form of question. asked: : by City’ s counsel, as follows: **Q. So- then from 1906 to 1918 was any y garbage sent to sea by the City: of New xoret A. No, sir.’’ ~ The banter, Sion finds ‘that the. defendaint i gaia . 7 for a brief period. during 1906 did not dispose of these things at sea”’ (R.. Sp. M., p.19). It is immaterial whether. : the: interruption was in 1903 or 1916. But at is materval . - that it did not extend for a three year period from 1903 to 1906, and nothing i m the record Justifies the statement. i in the - brief. , ; Taking up some of the statements i in the brief i in regard to the evidence, we find: On page 27, it is stated that “Exhibits 16 to 24, both ‘inclusive, show areas of garbage in mass and in process Be The words “New Jersey”? do not appear in 3 5 the printed abstract of testimony at the place referred to. On page 28, it is said that: ‘‘Soap will-not work on bathers: who have been i in that water (R. 16, 17). bd es _ The printed abstract. shows that these. onde should “on pre-.. ceded by the words ‘“people remark”. ‘In other words, the statement is’ hearsay: ~ On page: 29, it is stated that: “He ( Smack) has doliiwad the. trail of ashes which he has seen dumped in a definite line continu- ously to the beach, from approximately twenty = southeast by east of a — aly | “and that he: Eee ce eae Oe ty O35 Re 2 OD 10 “‘traced the course and direction for four and a half hours when the ‘wind was blowing at the rate of thirty miles an n hour (R. 24).”’ In other words, if Smack followed this garbage in that Way,. it must-have been movihg about 4% miles to 5% miles per hour (the Lightship being four miles from the shore—Pr. A., p. 24). Sinee the highest rate of drift of garbage as tested by Haas, plaintiff’s witness, from the Harbor Su- pervisor’s fice, was only slightly over a mile kn hour - with a 35 mile wind behind it, we. submit that: Smack’ 8 testi- © _ mony, as well as that of. the lobster men, on. ‘this subject was incredible and not to be interpreted as plaintiff and the Special Master have. interpreted. it. The correct con- struction is simply that they have gone through garbage all the way to the beach from the dumping grounds, but — not that they have gone along with garbage that they y Soy dumped all the way to the beach 65s also, majn brief, pp. 62 and 63). in “From the boitans of page 32 to ths a middle of page 35 is is a section ‘of the brief relating to the testimony of fisherme?, ‘almost all of whom fished for lobsters. _ A majority of these men testified to having. seen the scows dumped frequently, the reason therefor being because they: often hdd their. lobster pots set out near the dumping areas 18 to 20 miles off shore .(Voorhees; Pr. A., 86-37; Schweitzer, 42; De r Camp, 47; Peterson, 50; C. Holgarson, 55; Oleson, 75; Popp, 347-348 ; Jacobson, 373). Now, although the Special Master made - use of the testimony of these mén-as to following garbage from the dumping grounds to: the Shore (R. Sp. ..M., p. 26) he made no finding in, respect to. injury or dam- age to their lobster pots or to their business. Perhaps this - was becanse one of theny/——Oleson:—testfied (Pr. A ce 11 “T fished right around the dumping ground last year. That was the only place we could pick up a few w lobsters vt be , As ‘it is a matter > common knowledge that lobsters are ‘scavengers (Standard Dictionary ‘*Lobsters’’), the reason . why the lohster-men fished: on. the dumping grounds is ap- parent. As to the damage they suffered, it often came from the dumping by sgows of ‘‘heavy stuff’’ (cellar dirt, ete., + Sehweitzer, Pr. A., 46; Hines, 354; E. Philtips, 402). ‘The on) . page\34, are out of place therein, The Master could not testimony of this teak witness should be examined with . special ¢ care, as it is stated on n page 33 of plaintiff ’s brief: | ‘cphis’ garbage comes from New York. City secows “| and is more or less a regular thing every. day. This garbage affects lobster pots fiye or siX cross- -examination “Have you stopped beating your wife? Answer, yes, or no, és On page 52 of the brief we find this statement as to the ; _defendant’s garbage dumped at sea: “Tt retards the development and growth of ‘the a seashore communities ; depreciates the value of real property; reduces and impairs the development ‘of commercial enterprises; and retards the general prosperity ; © ¢. 0» : As set forth tinder subdivision ony, Point 1 VI (pp. 81- 86), of our main brief, there is no clear and convincing | proof -to substantiate. these important contentions of the | plaintiff. “At the bottom of page 52 of the brief the last’ subdi- vision is ‘‘Publie N uisance Proven’’,. We attacked the weak- ~ ness of the plaintiff ’s proof in Point IT of our main brief . on pages 55-57. We cited the testimony of seven of plain- - tiff’s witnesses who: stated in substance that for many . years prior to the time when. defendant started to dump — garbage at sea in 1918, conditioris on the beaches had been ae bad. Here is the testimony of three more of sueh ee | _ nesses on the ‘subject. 7 M. Hall, a fisherman and’ companion of Smack’ son his - investigating trips, testified (Pr. A. 117): “Por the last 20 years, I guess ‘have seen more or less garbage. 4 | aN a eee Albert B. Carver, another Jobeter aa testified “ (Pr. A. 213) : “Ty have been in ‘that business for 17 years. *# (Pr. A. 214). That condition (garbage) has existed | ‘ever ' since’ I can remember.”’ ee thie CORE eat : : ‘ ° be te a. Con! ene ER TO PTS ence OREN ES Ne hal gaip tty tas Sat YeX 904-6. The L. R ‘ * . ‘ ‘ 20 ° LE. Donald Sterner "State Senator, who. ike lived at Bel- mar all is life testified (Pr r. A. 216); ef have encountered this garbage on the beach - or: ‘elsew here ever since my boyhood Gaye. ale In stypport f thé last meutioriedl conclitsion of the plain- - tiff are cited a number of authorities, among others the ’ case of Kuehn x Milwaukee, 92 Wise. 263, 18 L. R. A. 553 » highest court of Wisconsin four. years earlier reported i in 83 Wise: 583 (53 No. W. 913). ‘When the case came before the Court later: in 92 Wise. 263, it was also reperted 1 in 65 No. W. 1030. , ‘We take the liberty of quoting therefrom as an addition to the list of cases set forth at pagé 49 of our main brief. It holds that the City.of Milwaukee, in disposing of its. garbage through a contractor (who dumped it in Lake Michigan, 15 miles from shore thereby injuring the plain- ‘ tiff’s fishnets) was acting 1 in @ dis ahaa “ae capacity, the . opinion also stating >. ‘And it is not necessarily nor prima facie, an act “~\_ of nuisance ‘to cast the garbage of a city upon Lake Michigan, 15 miles from the shore. It has long been the almost universal custom everywhere to empty the sewage of cities into adjacent lakes and streams almost from necessity.” AF es: : A. citation is not correct. That corre- | . sponds to a citation of. the same case when. it reached the ~ Replying to plaintiff's arguments that compliance by the defendant with 29 Stats. 209 as amended, and | permits issued | thereunder by the Supervisor of: the Harbor of New York, does not relieve defendant from "the effect of the public aera by its dump- | MEO | gene ne “We have little to add to what: was said in Point III in our main briéf and what has already been said on the subject ‘herein. ae mids eae The cases cited by the plaintiff on page 55 relate to nuisances erected or committed within State Doundaries and much that is said in them is colored by that fart. At page 56. it is stated that the validity of the permits: ~ issued by. the: Supervisor of the Harbor to the defendant ' cannot be determined from the record herein. In reply it "is sufficient to state that they were regarded as valid by 2 the Master (R. Sp. p.°43) [even although valueless as a defense] and plaintiff has not excepted to the finding. ‘Plaintiff contends (p. 06) that 30 Stats. 1152 (Section \. 13, Title 38, ‘Section 407. of United ‘States Code) applies - \ outside the Harbor of New York and adjacent waters. No authority for this claim: is cited and in reason. it. has no. validity. If 25 Stats. 209, as antended, does not apply to - defendant's acts certainly 30 Stats. 1152 does not. It one is ‘. not violated, neither is the other. If a permit from the . Harbor’ Supervisor is not good, one from. the Secretary of War would not be valid either. mere ; : Asa matter of fact, however, 30 Stats. 1152 was orig- ~ Inally part of d general River and Harbor Act making ‘Pp. 46). i . appropriations for works in rivers and harbors. 25 Stats. 209 was a special act covering for New York Harbor and. _ adjacent waters the same subject as that covered for other harbors by 30, Stats. 1152, The Master so held (R. Sp. M., 4. evotilins to plaintiff” s ‘etimaiias that such garbage and refuse as reaches the plaintiff's shores from | dumpings by coastwise and other vessels and other sources is negligible jn comparison with that dumped by defendant and reaching plaintiff’s shores, and con- | stitutes no defense to the plaintiff’s complaint. On page’ 58 of plaintiff's brief it is said that defendant’ 8 three witnesses Gainard, Lawrence and Bergsten testified to the ‘‘alleged accumulation of garbage’’ on the decks of vessels amounting ‘‘to 50 tons accumulated in ten to fifteen . . days in port occupying a space of 50 cu. ft. to the ton.” | It is claimed that the-testimony is inerédible. The echar- ° acterization that testimony related to accumulations ‘of garbage’’ is inaccurate and unfair. Gainard used the gen- eral word ‘‘maferials’’ (Pr. A. 554) and then described them in detail (Pr. A: 555). He did not state that the accu- mulation was for a period of ten or fifteen days, but fora» week or ten days-(Pr. A. 555, 560), and that ‘When I said . they accumulate garbage, now I am talking of accumula- . tion in port, hold cleanings”’ (er. A. 660) ° *-* whgl was. left of the cargo, the dirt, the dunnage the 50 tons consists of ‘garbage and rubbish”’ (Pr. A. 561). The others testi- - fied to much the same thing (Pr. .A., 584-585, 624- 625), although the amount was made sakalle?. 93 It really seems rather difficult for the plaintiff’s brief- writer to characterize the testimony accurately. The testi- * mony of defendant’s’ witnesses in regard to the kind of material dumped from’ cargo boats’ was in a measure cor- roborated by plaintiff's rebuttal witness, Snow (Pr. A. 647- wif 648), except that he had not seen garbage in duniage acca ~ mulations. Seed; pee at at ° Under the head of ‘‘Sewer Pollution”’ plaintiff discusses. . evidence relating to the Long Branch .and Asbury Park. Sewers. We have treated’ this subject on“pages 72-74: of our main brief. We will only add that thecriticism of the system of the Long Branch Sewer Company in the Engi- neers’ Report (Defendant ’s Exhibit 10) is about as seath- : ing as could be made. iat | ses Hi The criticisms of the engineers appear on pages 16, 31. and 33 of their report. On page 16, it is stated’ “The efficiency. af this plant is very low and un- satisfactory.” == : ; On page 31, itis said: + ‘The treatment in the disposal plant is by screen- “se ° Ing only of a most primitive kind.’’ e On page 32; we find the following: ice _ ‘‘Fly sereen wire has been found élsewhere-to be unsuitable for the screening of sewage. As might _ be-expected, large solids are found in the effiuent.’’ On page 33, it is stated: _” “The plant has been condemned by-the State —authorities and a new plant ordered, consisting of ‘Septic tank, chlorine disinfection, and pumps to raise the sewage to an elevation where it will be free from tidal interference.”’ : ie ¢ “ abcan, mn (re eee RABI. etl AEA RSC aS i Ram ea oh gees s ; lightship must also have been nearer the shore than the - City’s dumping. place. Hence the retarding influence of . ‘the tides would be less —_— materials dumped from these - .* a On page 64 of the brief, plaintitt states that “defendant produced no evidence of any such dumping, ”’ 1. e., by Brook- ’ lyn Navy Yard scows. Well, Harbor Supervisor Anderson. testified (Pr. A. 540): - | “Scows of the N avy Yard in ‘Rew York deposit materials on tht. high ‘seas. They are required Me go out to the garbage limit, although the: proportion . ’ of the garbage i in their loads is.a small proportion. Theirs is. ‘generally a rubbish and. refuse proposi- . tion, ty ; : Plaintift’ s investigator, Smack ° (Pr. A. 9) said: **In trailing Woodson we passed a Navy.’ vessel ine one empty garbage www SS * e, -- It is tiv defendant had no eye- -witness or photog- rapher to record the dumping by Navy’ Yard vessels. Doubtless, it is possible to infer that the empty garbage _ scow being towed by a Navy. vessel was simply out for any ; ‘airing, and. that the testimony of Captain Anderson was, ‘unlike the conclusions’ of dozens of plaintiff’s witnesses, which were based on ‘“‘complaints,’’ of no value whatever. The sea lane, or course, of coastwise vessels south- bound from New York ranges from three miles offshore Am \ at Seabright, Long Branch and Asbury Park to five miles at Sea Girt and to eight miles off Barnegat Lighthouse (Pr. ee A. 553, 584). The Master seems to have-so found, and © that their routes lie between the dumping places of the. City and the shore (R. Sp. M. p. 31).~- The dumping points for ‘‘cellar dirt’? barges being at 4 miles southeast: of the - - = solirces than they would be on materials dumped further offshore, since only one tid t e would operate against those - dumped nearer inshore. ven bee have a shorter distance to go when drifting under he influence of an east wind. ‘In other words, the likelihood of such garbage and refuse - reaching New Jersey shores and waters would be ‘much... greater. — bas Ask pe 4 | .. Our contention is, not’ as stated by plaintiff at page 64, ~ - that a’ similar nuisance created by passing ships or private Bas, sual ciently set forth in our main brief. 7 , As an appendix to this brief, we have set forth a list - of the- excéptions to the Master’s findings and page num- bers where the reasons for. taking the exceptions are dis- cussed in our main brief. comets al 27 Conclusion. -We renew our prayer for action by this Court set forth . , at the end of our: ‘main brief.. yas ; Respeetfully submitted, ARTHUR J. Ww. Hitty, Dorset. Counsel of the City of New York, Solicitor for the Defendant. Euuror S. BEnepicr, J. Josep Linty, Tuomas W. A. Crowe, 4 = Counsel. New York, April 27th, 1931. « : List of Defendant’ Ss kcontions and pinces’ in Main Brief 3 where discussed. Exceptions © Nos. Appendix. . Diecussed i in brief) ~ at- pages. 24... : ie 28: 20 : 102 ~ 102 (Error; found by Master) _ 257 ae AN 103 103 25 103-4 ~ 103-4 61 52 110-11 110-11 46 46. 46 46-47 |. 46-47 .. 46-47 ' 63 104 . 104-5 Exceptions - .Nos. ey | 98 - 29 . 30: 31. . 82 33 34 35 36 37 38 ee \ 40 Ge i \ 42 - a3 44 45 . > 46 47 48 49 . 50 . ol 52 53 Discussed in bitat : _ at pages 105 105 105-6 | 105-6 105-6 67 105-6 105, 108 105, 108 79-80 46,47 © - 46,47— 46,47 — 108 108-09 27, 36, 69 -No specific argument a =e 68 "70-71. . o? 109 No specifie argument 46,. 47, 86 105,107 | 105, 107° Exceptions 55 Discussed in brief a Nos. 5 ae: 55 56 57 58 59 oe «61 . 62 63. 64 65 66 67 68 69°. 70 71 72 73. 74 1c ee =e at pages | eae: Paes 74 ee 74° 14 74 70-71 74 74 oa 74 74 87 74 74° 77 77 29 Exéeptions ' Discussed in brief / Nos. at Pages ; oS eee ahs | . , 79-80: ate: 19-80 -. 79 - 79-80 | 80 91 81 - 91 82 73 83 109-110 84 80 85 80 86 80 87 No specific argument; partly found by - Hes Master. 88 80 ee 86 , 90 N6 specifie argume):1: 91 3 93 7 a = ee = 93. ny 9F . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0038%3A13. Public record. Not legal advice.