Misc.] Surrogate's Court, Kings County, December, 1921.

effected, as is evidenced by the fact that he is appearing in a court where the real question of whether or not the liquor was possessed for unlawful purpose may be properly determined. The fact that the state has deemed it expedient not to declare a forfeiture without giving constructive notice of the time and place of the hearing to anyone who might have an interest in the property seized, is no reason why the liquor taken from its owner should not be used as evidence against him provided, as in this case, he, or the person in charge, has received a copy of the warrant.

If I am right in my conclusions, it follows that the motion to dismiss the indictment must be denied; that the proper officials may retain the liquor seized, or so much thereof as is necessary, for evidence, until the action under the indictment is finally ended, at which time the liquor seized, except such as was properly used for evidence, shall be returned to defendant, and an order may be entered accordingly. Ordered accordingly.

In the Matter of the Petition of GEORGE MERCER and CHARLES COLEMAN MILLER to Render and Settle Their Account as Executors of and Trustees under the Last Will and Testament of WARREN SNYDER, Deceased.

(Surrogate's Court, Kings County, December, 1921.) Decedents' estates-banks and banking-dividends on savings bank deposits accruing subsequent to owner's death not principal but income.

Dividends derived from the earnings of a savings bank which did not accrue to decedent in his lifetime form no part of the principal of his estate but are payable as income to the legatees of income.

Surrogate's Court, Kings County, December, 1921. [Vol. 117.

SETTLEMENT of executors' accounts.

Charles Coleman Miller, for petitioners, George Mercer and Charles Coleman Miller.

Edward J. Flanagan, special guardian, for William Van Voorhees, William Grant and Betty Warren MacMillan.

WINGATE, S. The decedent died June 27, 1919, a depositor in fourteen savings banks. On July 1, 1919, dividends were credited to the accounts standing in his name. The sums thus credited, though commonly so called, are not interest which is compensation paid by a borrower of money to the lender for its use -and are not apportionable between principal and income. They are dividends derived from earnings, and are payable to the depositor only if declared by the trustees of the banks, and then only if the deposits are not withdrawn prior to the close of the period for which they are declared. In the case at bar this

period closed June 30, 1919.

The right to participate in these dividend distributions did not accrue to the decedent in his lifetime, and when credited or paid after his death they form no part of the principal of his estate. They are the product or produce of his estate, arising during its administration, and are payable as income to those to whom by his will the testator bequeathed the income of the property of which he died possessed.

Settle decree accordingly.

Misc.]

Supreme Court, December, 1921.

In the Matter of the Application of JAMES W. FLEMING, Individually and as Mayor of the City of Troy, and of the CITY OF TROY, a Domestic Municipal Corporation, for Alternative Prohibition Order Commanding the Public Service Commission of the State of New York and the United Traction Company and Each of Them to Desist and Refrain from any Further Proceeding in the Matter of the Application of the United Traction Company for Permission to Increase its Rate of Fare in the City of Troy to the Sum of Eight Cents, as Prayed For in a Petition Filed by Said United Traction Company with the Public Service Commission on or About the 10th Day of November, 1921.

(Supreme Court, Albany Special Term, December, 1921.)

Street railways - fare municipal corporations - franchise — legislative authority — legislature has full power to determine conditions local authorities may attach to railroad consents — rate of fare subject to regulation by legislature city of Troy - public service commission has jurisdiction to fix rates, notwithstanding franchise agreement writ of prohibition denied Public Service Commissions Law, as amended by Laws of 1921, chap. 335.

While a city although having no constitutional authority to prescribe the rate of fare may impose as a condition to the giving of its consent to the operation of a street railway within the corporate limits that a stipulated rate of fare shall be charged, the legislature has full power to determine the conditions that local authorities may attach to railroad consents to be given in the future.

The state's right to regulate fare, which necessarily includes the power to increase the same, if inadequate, is an implied part of any contract for the operation of a railway upon the streets of a city and the rate of fare provisionally fixed by such a contract is subject to regulation by the legislature.

Where, therefore, the United Traction Company, the successor

Supreme Court, December, 1921.

[Vol. 117.

in interest of several street railroads formerly operating under franchises created by the city of Troy on August 5, 1890, and at various times thereafter down to November, 1895, upon consents which provided that the rate of fare to be collected should not exceed the sum of five cents, made an application to the public service commission, which under the statute (Public Service Commissions Law, as amended by chapter 335 of the Laws of 1921), has full jurisdiction to fix reasonable rates "notwithstanding that a higher or lower rate, fare or charge has been heretofore prescribed by general or special statutes, contract, grant, franchise condition, consent or other agreement," for permission to increase its rate of fare within the city to the sum of eight cents, an application on the part of the city for a writ of prohibition commanding the public service commission and the railway company to refrain from proceeding on such application for an increase of fare will be denied, on the ground that there being no question involved as to the annulment of a condition, the abrogation of a defeasance or impairment of an obligation, the commission has both jurisdiction and power to grant the particular relief asked for, so far as the local franchises are concerned.

APPLICATION for writ of prohibition.

Thomas H. Guy, corporation counsel, for applicant. Ledyard P. Hale, for Public Service Commission. John E. MacLean, for United Traction Company.

HINMAN, J. This is an application on the part of the city of Troy for a writ of prohibition commanding the public service commission and the United Traction Company to refrain from further proceedings in the matter of the application of said company for permission to increase its rate of fare within the city of Troy to the sum of eight cents.

There may be question as to whether prohibition will lie but all parties have expressly stated their desire to have the matter disposed of upon the merits of the constitutional question involved.

Misc.]

Supreme Court, December, 1921.

The United Traction Company is the successor of several street surface railroads formerly operating upon the streets of the city of Troy under so-called franchise agreements with said city. The United Traction Company has succeeded to all their rights and obligations under said agreements. These agreements were consents of the city to use certain streets of the city for the construction and operation of the several railroads, which consents embodied certain terms and conditions which were agreed to by the railroads. These consents were obtained at various times between August 5, 1890, and November 25, 1895. The consents of August 5, 1890, contain the following provision as to the rate of fare that may be collected:

"Section 4. The rate of fare to be collected for a ride in any one general direction upon the railroad of said company within the City of Troy shall not exceed the sum of five cents."

This fare limitation has been incorporated either. expressly or by reference in other consents. The Constitution of the state says that "no law shall authorize the construction or operation of a street railroad" unless the consent of the local authorities. having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained." Const., art. III, § 18. The Constitution does not in any way prescribe or limit the fare to be charged by a street railway company nor does it delegate any power in relation thereto to the municipality. There is a limitation of the legislative power in one respect only. The consent of the municipality must be obtained before a law can authorize construction or operation on any of its streets. Like consent was required by statute prior to 1875 when the provision therefor was inserted in the Constitution. The effect of placing it in the Con