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though the Oneida river may have been declared a public highway, we suppose that this could not have prevented the erection of structures for hy. draulic purposes by those owning the lands to which the water was an ease ment, provided they did not obstruct the navigation."

The award to Edmund Merry and George G. Breed by the canal appraisers in 1872 (Ex. 58) expresses the same views:

“The references of the learned counsel for the state to numerous statutes in regard to surplus waters, etc., are not applicable, as those statutes were all passed long before the decision of Varick v. Smith, 9 Paige, 547, which was in 1842, and the proceeding of the canal board put in evidence in this case was recognized by the board in acting upon the petition of Phænis for the repayment of the money he had paid the state for the rent of the surplus waters sold to him by the state in 1827 or 1828. The money was repaid with interest to Phønix; he insisting, and the canal board assenting, that by the decision in Varick v. Smith, the state had undertaken to sell to him wbat always belonged to him, and which tberefore the state did not own, and therefore had no right to sell.”

The effect of these facts to establish adverse possession is not destroyed, although the land occupied by claimants, or part of it, was formerly land under water, for such land, under the authorities of this state, may be acquired by prescription. An authority for this position is found in the proceeding of the state to acquire land for the Niagara reservation. Matter of Commissioners of State Reservation at Niagara, 37 Hun, 537. In that case the commissioners held that the Niagara river was a boundary stream, and that the title of the land upon its shore extended only to high-water mark, and that the state owned the bed of the river. They found that one of the claimants in that case had acquired by prescription riparian rights in the river, for which they awarded him substantial damages. Another authority is that of Timpson v. Mayer, 5 App. Div. 429, 39 N. Y. Supp. 252, in which the court says:

“That title to land under water in a navigable river, as well as exclusive rights of fisheries therein, may be acquired by adverse possession or pre scription against the state, is settled law in this jurisdiction."

Under these facts claimants have acquired title to the land in question by adverse possession and also to such riparian rights used by them as have not been appropriated to the canal for canal purposes prior to the present appropriation. The general rule is that title by adverse possession cannot be acquired as against the state in the absence of statutory authority. This authority, however, is found in varicus statutes which prescribe the limitations within which the state and those making claim under it may maintain an action to recover real property. The limitation contained in the statute of 1788 was 40 years. Page 683, c. 43. The same limitation was prescribed in the 'statute of 1801. Page 509, c. 183. From 1830 to 1848 the limitation was 20 years, while, since the enactment of the Code of Procedure, the limitation has been 40 years. These statutes have provided that the state will not sue for or with respect to real property or the issues or the profits thereof unless the cause of action accrued within the period prescribed before the commencement of action, or unless the people or those from whom they claim have received rents or proi

of time. The state therefore might maintain an action to recover the property in question, provided it could show that its cause of action accrued within the statutory period, or provided it could show that it had received rents or profits from the property within the same period of time. The state is not in osition to show either of these facts, and in this proceeding has not established either of these facts. Such being the provisions relating to a claim by the state, one claiming as against the state would be required to show, not only that no cause of action has accrued to the state within the statutory period, but that the state has not received any rents or profits from the property or any part thereof. These conditions are complied with by the proofs in this case, and the claimants therefore have shown title by adverse possession as against the state irrespective of their record title. People v. Livingston, 8 Barb. 253; People v. Clarke, 10 Barb. 120; People v. Arnold, 4 N. Y. 508; People v. Van Rensselaer, 9 N. Y. 291; People v. Rector, etc., of Trinity Church, 22 N. Y. 44.

The record title and the doctrine of prescription dispose of the position of the state that the land sought to be condemned is in the original bed of the Oswego river. This position was sought to be maintained by evidence of living witnesses and by excavations made tending to show that the land had been filled in. The state claims that the high bank to the east of the premises formed the original bank of the river. This contention may be true, but the fact is so far in the past that it will not form a basis for adjudicating this case. It is quite likely that the Oswego river was originally much higher than at present, and that it covered a great deal of land which is now out of water; but, even if this fact were established, it would not disturb the title of the claimants. Whether or not the title of the claimants extends to the center of the river, this being a nontidal, nonboundary stream, any land which they may have reclaimed from the bed of the river may be occupied by them, so long as they do not interfere with the paramount right of the state or federal government to improve the bed of the river for purposes of navigation or commerce. As bearing upon the subject, it is a significant fact that, as far back as 1813, and ever since that time, there has been a mill site at the location of the present power plant station.

This disposes of the question of title which the court is called upon to decide at this stage of the case, and the answer to this question is clearly that the claimants are the owners in fee of the land sought to be condemned and of the riparian rights attached thereto. If the conclusions above arrived at are correct, the Stene patent covered all of the land under the Oswego river to the center of the river and all of the riparian rights attached thereto, and all of these riparian rights continued in Stene and his successors in title down to the construction of the canal in 1826 when, by the building of the dam across the Oswego river and the construction of the canal, the state acquired riparian rights attached to the premises covered by the Stene patent, and later, in 1857, when the Oswego Canal was improved, additional riparian rights were acquired. The extent of these riparian rights this decision does not determine, for the question involves facts concerning which no proofs have been offered. What riparian rights

remain in the claimants after such acquisition by the state likewise remain unadjudicated for the same reason. What part of these riparian rights the state seeks to acquire in this proceeding is also one of the questions left in abeyance. This decision merely holds that the claimants are the owners of the land actually proposed to be taken and of such riparian rights as still attach to their premises, leaving all other questions for future determination.

Judgment accordingly.

MUSSILLER V. RICE. (City Court of New York, Special Term. May, 1909.) 1. FRAUD ($ 28*)-FRAUDULENT PURCHASE OF GOODS.

A complaint which alleges that defendant was indebted to plaintiff's assignor, that defendant gave a check aggregating the debt in payment thereof as an inducement to obtain further credit, that plaintiff's assigpor, relying on defendant's statement that the check was good, extended to de fendant further credit and delivered to him merchandise of a specified value, that the check was not paid, because defendant had no funds in the bank to meet it, that defendant knew at the time he gave the check that he had no funds in the bank, that he gave it with intent to defraud plaintiffs assignor, and that plaintiff's assignor was injured in a specified amount, states a cause of action for deceit.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. $$ 8, 26; Dec. Dig.

§ 28.*] 2. FRAUD ($ 3*)-ELEMENTS.

The elements of actionable fraud are representations, falsity, knowledge, deception, and injury.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. $ 1; Dec. Dig. $ 3."

For other definitions, see Words and Phrases, vol. 3, pp. 2943–2954; Fol.

8, p. 7666.] 3. ARREST ($ 29*)-ARREST IN CIVIL ACTIONS-AFFIDAVIT-SUFFICIENCY.

An affidavit for order of arrest in a civil action for fraud, which arers facts showing that property has been parted with by reason of defendant's false representations, is sufficient, under Code Civ. Proc. $ 549, defining when a defendant may be arrested in a civil action.

[Ed. Note.--For other cases, see Arrest, Cent. Dig. $ 66; Dec. Dig. $ 29.*] 4. Arrest ($ 35*)-ARREST IN CIVIL ACTIONS-COMPLAINT-SUFFICIENCY.

Where a complaint states a cause of action for fraud, and the affidavit for order of arrest issued avers facts showing that property has been parted with by reason of defendant's false representations, an amended complaint is not necessary, within Code Civ. Proc. $ 558, authorizing the service of an amended complaint where an order of arrest has been granted.

[Ed. Note.-For other cases, see Arrest, Cent. Dig. $ 83; Dec. Dig. $

35.*] 5. ARREST (§ 33*)-ARREST IN CIVIL ACTION-ORDER-SUFFICIENCY.

An order for arrest of defendant in an action for fraud, which states the ground as “fraud and representations in inducing plaintiff to enter into a sale and delivery of merchandise,” is sufficient, though it was plaintiff's assignor who was induced to sell and deliver merchandise; the omis. sion of the word "assignor" being a clerical error.

[Ed. Note.-For other cases, see Arrest, Cent. Dig. $ 76; Dec. Dig. $ 33.*]

6. ABREST (8 33*) — ARREST IN CIVIL ACTION-ORDER-SUFFICIENCY-RECITALS

AS TO UNDERTAKING,

Where an undertaking in proper form was attached to the order of arrest of defendant in a civil action, and it appeared that the undertaking had been approved as to form and sufficiency by the justice who signed and allowed the order, the order of arrest sufficiently showed that plaintiff had given an undertaking as required by law.

[Ed. Note.-Fór other cases, see Arrest, Cent. Dig. $ 76; Dec. Dig. 8 33.*]

Action by Frederick C. Mussiller against Henry Rice. Application for an order vacating the order of arrest of defendant denied.

Henry A. Heiser, for plaintiff.
Rosenbluth & Silverman, for defendant.

FINELITE, J. Defendant makes application for an order vacating the order of arrest granted in this action on the following grounds: First, that no order of arrest is alleged in the complaint; second, that no ground of arrest is alleged in the affidavits; third, that the complaint fails to set forth a sufficient cause of action, as required by section 549 of the Code of Civil Procedure, and no amended complaint has been served or made, as required by section 558 of the Code of Civil Procedure; fourth, that the ground of arrest is not stated in the order of arrest; fifth, that the order of arrest does not contain an allegation that the plaintiff has given an undertaking as required by law.

The court is of the opinion that the complaint by proper allegations sets forth a cause of action sounding in tort. It sets forth that on July 12, 1907, defendant was indebted to plaintiff's assignor $220.16; that defendant gave two checks aggregating that sum in payment of said indebtedness as an inducement to obtain further credit under an arranged plan; that further credit would be extended to defendant by plaintiff's assignor, upon said assignor receiving payment for goods previously pruchased; that plaintiff's assignor, relying upon defendant's statements that said two checks were good, and that there were sufficient funds in the bank to pay them, did upon defendant's request extend to defendant further credit, and did deliver merchandise of the agreed value of $339.18; that said checks were presented, and payment was refused by the bank upon which they were drawn, for the reason that there were no funds to the credit of the defendant in said bank, his account having been closed; that the said defendant knew at the time he gave said checks that there were in the bank no funds to meet them, and that they were given with the intent to deceive and defraud plaintiff's assignor, so as to gain additional credit; that said plaintiff's assignor relied upon defendant's statements as to the genuineness of said checks, and by reason thereof extended credit to the defendant, and by reason of said statements the said assignor was injured to the extent of $579.34; that said claim was assigned to plaintiff, and payment of same was demanded, but refused. Thus it can be seen that this complaint contains the necessary allegations to maintain an action for fraud and deceit, and the five elements necessary for

•For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the maintenance thereof are here set forth, to wit, representation, falsity, scienter, deception, and injury.

To support an action for false representations, the damages must have been caused thereby. That damages flowed by reason of the falsity of said representations relative to the checks can be seen from said complaint. The affidavits and the complaint are replete with facts showing that property had been parted with by reason of defendant's false representations, and therefrom can be gleaned sufficient to meet the requirements of section 519 of the Code of Civil Procedure. That being the fact, no amended complaint is made necessary within the purview of section 558 of the Code of Civil Procedure. Thus the court believes that the first, second, and third grounds for vacating the order of arrest are untenable.

As to the fourth objection, the court is of the opinion that a sufficient ground is stated in said order for the arrest of the defendant; the ground being "fraud and misrepresentations in inducing plaintiff to enter into a sale and delivery of merchandise.” Of course, it was not exactly the plaintiff who was induced, etc., but his assignor, and the attorney for plaintiff explains that the word “assignor” was omitted after the word "plaintiff's” by reason of a clerical error, which explanation the court believes sufficient, and the omission thereof does not warrant vacating said order of arrest.

An undertaking in proper form is attached to the order of arrest, and same was approved as to form and sufficiency by the justice who signed and allowed the order of arrest, that being all that was necessary; and it seems to the court that the fifth ground must also fall, and that the motion to vacate the order of arrest upon all the grounds stated be denied.

Motion denied. Submit order.

(63 Misc. Rep. 156.)

In re STARBUCK'S ESTATE.

(Surrogate's Court, Westchester County. April 12, 1909.)

1. CURTESY (8 7*)-REQUISITES-CONCURRENCE.

All the requisites of curtesy existed where there was a valid marriage, children born alive from the union, and the wife died seised of real property.

[Ed. Note. For other cases, see Curtesy, Cent. Dig. $ 5; Dec. Dig. $ 7."

For other definitions, see Words and Phrases, vol. 2, pp. 1796–1707; vol.

8, p. 7625.] 2. CURTESY (8 1*)-NATURE OF ESTATE,

Curtesy is an estate created by law in the real property of the wife, subject to being divested by her will or deed and is not derived from the wife's estate or by inheritance from her; Laws 1896, p. 619, c. 547, $ 251, the general rule of descent, not including curtesy, and section 280 providing that that article does not affect a limitation of an estate by curtesy,

[Ed. Note.-For other cases, see Curtesy, Cent. Dig. $$ 1, 2; Dec. Dis. 8 1.*]

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