tainly authorize the dumping of earth at a particular point and raising an island. It could author ize the occupation of bars or such other acts as might develop them. And why, then, could it not authorize the use of the bottom for substantially submarine agriculture, with the incidental rights of penetrating the waters to reap the crop? Another view of the subject is that it is simply the exercise of police power. Also held, That the State could properly exercise this power through the town officials. In this there is no delegation of the power to determine whether or not the lands and waters should be so used, but merely the selection of officers through and by whom the State should attest the fact that it had leased, and the qualifi purpose? Who will deny that the State, through its own constabulary, might protect its lessees or licensees in the limitations upon fishing quite as properly as it can limit the methods of taking fish or grain to particular seasons of the year? The State might well prefer to encourage the planting of oysters rather than to preserve natural clam beds, and that is an essential feature of the act in question. This act was clearly within the powers of the Legislature, and is valid. Judgment and conviction affirmed. Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur. EVIDENCE. CUSTOM. cation of the lands for the pur- N.Y. SUPREME COURT. GENERAL poses of the lease, i. e., the extent in acreage, and whether or there was a natural oyster bed upon them, etc. Besides this, the State is really, by this act, following a policy for the promotion of the public good and the benefit of all its inhabitants. It is encouraging and at the same time protecting oyster-culture, and in the latter respect it is at most exercising a police power. The method by which the State shall develop its resources, especially upon the public domain, must be a matter within the discretion of the representatives of her people -- the Legislature. Why should not the State select these town officers to exercise this right quite as readily as to select new officers for that TERM. FOURTH DEPT. Alice Douglas, respt., v. Joseph L. Haberstro, applt. Decided Oct., 1883. Where there is direct evidence to the particular matter in question evidence of custom on other occasions is irrelevant. Appeal from judgment on verdict at circuit. the body execution against Warren was returned within less than sixty days from the time when it was issued by the direction of plaintiff's attorney. 88 N. Y., 611. On the last trial the jury found, impliedly, that such return was not directed by plaintiff's attorney. The court sustained objections taken to several questions put by defendant's counsel with a view to showing whether there was a custom in the sheriff's office upon the subject of holding and returning executions, and if so, what the custom was." There was direct evidence as to what was done in respect to the particular execution in question. 66 other occasions was of no conse-quence. Moreover, Gatchell's custom in the matter being proved, the usage of the other persons employed in the office was immaterial. Although Gatchell's testimony as to fees does not appear to have been material, its reception was not prejudicial to defendant-it merely confirmed what he had stated as his impression or belief. Judgment affirmed. Opinion by Smith, P. J.; Hardin, J., concurs; Barker, J., not sitting. FORGERY. EVIDENCE. TERM. FOURTH DEPT. Mary C. Langley, respt., v. Richard Wadsworth, ex'r, applt. Decided Oct., 1883. Gatchell, the under sheriff, who N. Y. SUPREME COURT. GENERAL caused the return to be made, testified, as a witness for defendant, that he usually held body executions fifteen days-never less, unless under instructions." Appellant's counsel contends that the. court erred in allowing plaintiff to prove, on cross-examination of Gatchell, the amount of the fee charged by defendant for the return of the property and body executions against Warren. Gatchell had testified previously without objection that he had no doubt Mr. Hubbell was charged with the fees on the body execution. Adelbert Moot, for applt. The question as to what effect certain physical exertion would have upon one's handwriting, or what it indicated as to his ability to write, if proper for an expert, is one for a medical expert rather than for an expert in handwriting. Appeal from Special Term order, denying defendant's motion for a new trial. Action on a promissory note, purporting to have been made by defendant's testator, and the de John Campbell Hubbell, for fense is forgery. Upon the quesrespt. Held, That the jury's finding is not against the weight of evidence. There being direct evidence as to what was done in respect to the particular execution in question the usage of the sheriff's office on tion of the genuineness of the signature the evidence was conflicting. Mr. Nolton, an expert, called by plaintiff, gave his opinion that the signature was genuine. On cross-examination he said he could see a very great dissimilarity be tween it and other signatures assumed to be genuine, which he could only account for by the fact that the writer was in ill-health. Defendant's counsel then put a hypothetical question, which assumed that shortly before the time when, as plaintiff claimed, the testator executed the note, he walked from a Jersey City ferry landing in New York to the Grand Central Hotel, carrying quite a large satchel, and upon that hypothesis the witness was asked what he would say as to the testator's being in such a condition as not to be able to write his name. An objection that the question was incompetent was sustained. A. G. Rice, for applt. Torrance & Allen, for respt. Held, We cannot say the ver dict should be set aside as clearly against the weight of evidence. The hypothesis submitted to the witness furnished no facts upon which an opinion could properly be based as to the testator's ability to write, and the question what effect the physical exertion supposed would have had upon the testator's handwriting, or what it indicated as to his ability to write, if proper for an expert, was one for a medical expert rather than an expert in handwriting. As the witness was not shown to be a medical expert, his answer to the question would have been of no value as testimony. Order affirmed. Opinion by Smith, P. J.; Hardin, J., concurs; Barker, J., not sitting. INJUNCTION. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Samuel G. French, applt., v. The Board of Education of the City of New York et al., respts. Decided Nov. 5, 1883. The court will not enjoin the Board of Edu cation of the City of New York for procuring the fuel necessary for the use of the public schools, except in a case where no other remedy is possible for the protection and preservation of the rights of the parties. An injunction will not be granted when a complete remedy exists by way of damages. When a person claims that he is legally enti tled to a contract to supply coal for the use of the public schools, which contract the Board of Education has illegally awarded to another, his remedy is by an action for damages and an injunction will not be granted to prevent the Board from procuring such coal from other sources. Appeal from an order vacating an injunction. The complaint alleged that by the by-laws of the Board of Education of the City of New York it is provided that the Committee on Supplies shall advertise for proposals to furnish articles required by the schools for the ensuing year, and that the committee shall, in all cases, award the contract to any responsible party making the lowest proposal who will give satisfactory security, and that such award be submitted to the Board of Education for approval; that on April 2, 1883, the Committee on Supplies advertised for proposals to supply coal; that plaintiff made such a proposal, which was the lowest made; that subsequently the committee awarded the contract to plaintiff, | but that, before the committee had reported to the Board, it decided to reject all proposals on the ground that the proposal of plaintiff was irregularly received under the advertisement of April 2, and to re advertise for proposals to for proposals to supply coal; that on May 3, 1883, they did so re-advertise; that bids were received pursuant to said advertisement, the lowest of which was made by one B.; that the committee thereupon awarded the contract to B. and that such award was afterward approved by the Board of Education, which also declined to approve of the previous award made to plaintiff. Plaintiff thereupon demanded judgment that the Board of Education be adjudged to execute to plaintiff the contract for the sup That, assuming that the plaintiff was entitled to the contract for supplying the coal, the facts which entitle him to such contract would also entitle him to damages adequate to cover any losses he might sustain by reason of the failure of the Board of Education to perform its duties towards him, and while such a remedy exists an injunction will not be granted to restrain the Board of Education from obtaining the coal necessary for the use of the schools from other sources and in the form prescribed by law. Order affirmed. Opinion by Davis, P. J.; Brady, J., concurs. JUDGMENT. COSTS. ply of coal, and that it be enjoin-N. Y. SUPREME COURT. GENERAL ed from executing and delivering said contract to B. Upon this complaint an ex parte injunction by order was granted, which upon motion of defendants was vacated; and from the order. vacating such injunction plaintiffs appealed. John T. McGowan, for applt. D. J. Dean, for respts. Held, That the duty of the Board of Education to supply fuel for the use of the public schools should not, for obvious reasons, be interfered with by injunctions which prevent the Board from procuring the necessary fuel, except, it may be, in a case where no other remedy is possible for the protection and preservation of the rights of parties. TERM. SECOND DEPT. The N. Y. Elevated RR. Co.. applt., v. John F. Harrold et al., respts. Decided Sept., 1883. An equitable action to have a judgment at law cancelled as having been obtained by fraud cannot be maintained when the questions involved are precisely the same as those litigated and determined in the action in which the judgment was obtained. A demurrer is a defense within the meaning of $3,253 of the Code. Appeal from judgment in favor of defendants on demurrer to the complaint. Action to have a judgment obtained against the plaintiff by the defendant Harrold declared fraudulent and void and canceled of record. The complaint states the recovery of the verdict in that action, a motion for new trial on the minutes and a motion for a new trial on the ground of newly discovered evidence, which were both denied; that it was contended on the part of the company in that action that Harrold was shamming and had not sustained any serious injury, and that it was on that question mainly that the cause was submitted to the jury. It then alleges, on information and belief derived from facts and evidence obtained since the trial and which were not obtainable at that time, that Harrold was not seriously injured. Then comes the main averment, that the defendants conspired together to defraud the company of a large sum of money by means of the action by charging and swearing that Harrold was seriously injured, when they well knew he was not. Yet there is no statement here that they carried out the conspiracy by swearing so on the trial. Deyo, Duer & Bauersdorf and J. H. Bergen, for applt. is a statement in this complaint, on information and belief derived from facts and evidence obtained since the trial of that action and which were not obtainable at that time, that Harrold was not seriously injured; but that only presents the same question. If such evidence was not obtainable before, that may or may not present a reason for a new trial on the ground of newly discovered evidence, but it presents no reason for a cancellation of the verdict and judgment, because no fraud of any kind is set up in connection therewith. There is no claim that the company was obstructed in the acquisition or discovery of evidence by the defendants or either of them, neither is it stated that any effort was made to obtain the same before the trial. Chauncey Shaffer and A. H. considered and denied by those Daily, for respts. Held, That it plainly appears that the questions involved in this case are precisely the same as those litigated and determined in the former action-that is, whether Harrold was seriously and permanently injured; because this complaint states that was the main question submitted to the jury. The verdict must therefore be received as a determination that the injuries of Harrold were serious and permanent. It is true there courts. Courts of equity will not interfere against a judgment at law, "unless the defendant in the judgment was ignorant of the fact in question pending the suit, or it could not have been received as a defense, or unless he was prevented from availing himself of the defense by fraud or accident, or the act of the party unmixed with negligence or fault on his part." 70 N. Y., 10. The complaint does not bring the case within either of these heads. |