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tainly authorize the dumping of purpose!

Who will deny that earth at a particular point and the State, through its own conraising an island. It could author: stabulary, might protect its lessees ize the occupation of bars or such or licensees in the limitations other acts as might develop them. upon fishing quite as properly as And why, then, could it not it can limit the methods of taking authorize the use of the bottom for fish or grain to particular seasons substantially submarine agricul- of the year? The State might ture, with the incidental rights of well prefer to encourage the plantpenetrating the waters to reap the ing of oysters rather than to precrop? Another view of the sub

serve natural clam beds, and that ject is that it is simply the exer- is an essential feature of the act in cise of police power.

question. Also held, That the State could

This act was clearly within the properly exercise this

power powers of the Legislature, and is through the town officials. In valid. this there is no delegation of the Judgment and conviction afpower to determine whether or not firmed. the lands and waters should be so Opinion by Pratt, J. ; Barnard, used, but merely the selection of P. J., and Dykman, J., concur. officers through and by whom the State should attest the fact that it bad leased, and the qualifi

EVIDENCE. CUSTOM. cation of the lands for the pur- N. Y. SUPREME COURT. GENERAL poses of the lease, i. e., the extent

TERM. FOURTII DEPT. in acreage, and whether or not there was a natural oyster bed Alice Douglas, respt., V. Jo. upon them, etc. Besides this, the seph L. Haberstro, appll. State is really, by this act, follow

Decided Oct., 1883. ing a policy for the promotion of the public good and the benefit of Where there is direct evidence to the particuall its inhabitants. It is encour

lar matter in question evidence of custom

on other occasions is irrelevant. aging and at the same time protecting oyster-culture, and in the Appeal from judgment on verlatter respect it is at most exer: dict at circuit. cising a police power. The method Action against defendant by which the State shall develop sheriff to enforce his liability as its resources, especially upon the bail, he having discharged from public domain, must be a matter custody one Warren, whom he had within the discretion of the repre- arrested at the suit of plaintiff, sentatives of her people

her people -- the upon an undertaking given by bail Legislature. Why should not the who failed to justify. A former State select these town officers to verdict in plaintiff's favor was set exercise this right quite as readily aside on account of the exclusion as to select new officers for that of defendant's offer to show that


the body execution against War- other occasions was of no conse-ren was returned within less than


Moreover, Gatchell's sixty days from the time when it custom in the matter being proved, was issued by the direction of the usage of the other persons plaintiff's attorney. 88 N. Y., employed in the office was imma611. On the last trial the jury terial. found, impliedly, that such return Although Gatchell's testimony was not directed by plaintiff's as to fees does not appear to have attorney. The court sustained been material, its reception was objections taken to several ques not prejudicial to defendant--it tions put by defendant's counsel merely confirmed what he had

with a view to showing whether stated as his impression or belief. • there was a custom in the sheriff's Judgment affirmed. office"

upon the subject of hold- Opinion by Smith, P. J.; Har. ing and returning executions, and din, J., concurs; Barker, J., not if so, what the custom was.” sitting. There was direct evidence as to what was done in respect to the

FORGERY. EVIDENCE. particular execution in question. Gatchell, the under sheriff, who N. Y. SUPREME COURT. GENERAL caused the return to be made, tes

TERM. FOURTH DEPT. tified, as a witness for defendant, that he “ usually held body exe

Mary C. Langley,respt., v. Richcntions fifteen days-never less, ard Wadsworth, ex’r, applt. unless under instructions." Ap- Decided Oct., 1883. pellant's counsel contends that the court erred in allowing plaintiff to

The question as to what effect certain phys

ical exertion would have upon one's handprove, on cross-examination of

writing, or what it indicated as to his abil. Gatchell, the amount of the fee ity to write, if proper for an expert, is one charged by defendant for the re- for a medical expert rather than for an turn of the property and body

expert in handwriung. executions against Warren. Gatch- Appeal from Special Term order, ell had testified previously without denying defendant's motion for a objection that he had no doubt new trial. Mr. Hubbell was charged with the Action on a promissory note, fees on the body execution. purporting to have been made by Adelbert Moot, for applt.

defendant's testator, and the deJohn Campbell Hubbell, for fense is forgery. Upon the ques. respt.

tion of the genuineness of the sigHeld, That the jury's finding is nature the evidence was conflictnot against the weight of evidence. ing. Mr. Nolton, an expert, called

There being direct evidence as to by plaintiff, gave his opinion that what was done in respect to the the signature was genuine. On particular execution in question cross-examination he said he could the usage of the sheriff's office on see a very great dissimilarity between it and other signatures as

INJUNCTION. sumed to be genuine, which he N. Y. SUPREME COURT. GENERAL could only account for by the fact

TERM. FIRST DEPT. that the writer was in ill-health. Defendant's counsel then put a

Samuel G. French, applt., v.

The Board of Education of the hypothetical question, which assumed that shortly before the time City of New York et al., respts. wlien, as plaintiff claimed, the tes- Decided Nov. 5, 1883. tator executed the note, he walked from a Jersey City ferry landing The court will not enjoin the Board of Edu

cation of the City of New York for procurin New York to the Grand Cen

ing the fuel necessary for the use of the tral Hotel, carrying quite a large public schools, except in a case where no satchel, and upon that hypothesis other remedy is possible for the protection the witness was asked what he

and preservation of the rights of the parties.

An injunction will not be granted when a would say as to the testator's being

complete remedy exists by way of damin such a condition as not to be

ages. able to write his name. An objec. When a person claims that he is legally entition that the question was incom

tled to a contract to supply coal for the

use of the public schools, which contract petent was sustained.

the Board of Education has illegally awardA. G. Rice, for applt.

ed to another, lig remedy is by an action Torrance & Allen, for respt.

for damages and an injunction will not be Held, We cannot say the ver

granted to prevent the Board from procurdict should be set aside as clearly

ing such coal from other sources. against the weight of evidence. Appeal from an order vacating

The hypothesis submitted to the an injunction. witness furnished no facts upon The complaint alleged that by which an opinion could properly the by-laws of the Board of Edube based as to the testator's ability cation of the City of New York it to write, and the question what is provided that the Committee on effect the physical exertion sup- Supplies shall advertise for proposed would have had upon the posals to furnish articles required testator's handwriting, or what it by the schools for the ensuing indicated as to his ability to write, year, and that the committee if

proper for an expert, was one shall, in all cases, award the confor a medical expert rather than tract to any responsible party an expert in handwriting. As the making the lowest proposal who witness was not shown to be a will give satisfactory security, and medical expert, his answer to the that such award be submitted to question would have been of no the Board of Education for apvalue as testimony.

proval; that on April 2, 1883, the Order affirmed.

Committee on Supplies advertised Opinion by Smith, P. J.; Har for proposals to supply coal ; that din, J., concurs ; Barker, J., not plaintiff made such a proposal, sitting

which was the lowest made; that subsequently the committee

awarded the contract to plaintiff, That, assuming that the plainbut that, before the committee tiff was entitled to the contract had reported to the Board, it de- for supplying the coal, the facts cided to reject all proposals on the which entitle him to such contract ground that the proposal of plain- would also entitle him to damages tiff was irregularly received under adequate to cover any losses he the advertisement of April 2, and might sustain by reason of the to

re advertise for proposals to failure of the Board of Education supply coal; that on May 3, 1883, to perform its duties towards hin, they did so re-advertise; that and while such a remedy exists bids were received pursuant to an injunction will not be granted said advertisement, the lowest of to restrain the Board of Education which was made by one B.; that from obtaining the coal necessary the committee thereupon awarded for the use of the schools from the contract to B. and that such other sources and in the form preaward was afterward approved by scribed by law. the Board of Education, which also Order affirmed. declined to approve of the pre- Opinion by Davis, P. J.; Bravious award made to plaintiff. dy, J., concurs. Plaintiff thereupon demanded judgment that the Board of Education be adjudged to execute to

JUDGMENT. COSTS. plaintiff the contract for the sup

N. Y. SUPREME COURT. GENERAL ply of coal, and that it be enjoin

TERM. SECOND DEPT. ed from executing and delivering said contract to B.

The N. Y. Elevated RR. Co., Upon this complaint an ex parte applt., v. John F. Harrold et al., injunction by order was granted, respts. which upon motion of defendants was vacated ; and from the order

Decided Sept., 1883. vacating such injunction plaintiffs An equitable action to have a judgment at law appealed.

cancelled as having been obtained by fraud John T. McGowan, for applo.

cannot be maintained when the questions

involved are precisely the same as those D. J. Dean, for respts.

litigated and determined in the action in Held, That the duty of the which the judgment was obtained. Board of Education to supply fuel

A demurrer is a defense within the meaning

of $ 3,253 of the Code. for the use of the public schools should not, for obvious reasons, be Appeal from judgment in favor interfered with by injunctions of defendants on demurrer to the which prevent the Board from pro- complaint. curing the necessary fuel, except, Action to have a judgment ob it may be, in a case where no other , tained against the plaintiff by the remedy is possible for the protec- ; defendant Harrold declared frantion and preservation of the rights dulent and void and canceled of of parties.

record. The complaint states the recovery of the verdict in that ac- is a statement in this complaint, tion, a motion for new trial on the on information and belief derived ininutes and a motion for a new from facts and evidence obtained trial on the ground of newly dis- since the trial of that action and covered evidence, which were both which were not obtainable at that denied ; that it was contended on time, that Harrold was not serithe part of the company in that ously injured ; but that only preaction that Harrold was shamming sents the same question. If such and had not sustained any serious evidence was not obtainable before, injury, and that it was on that that may or may not present a question mainly that the cause reason for a new trial on the was submitted to the jury. It ground of newly discovered evithen alleges, on information and dence, but it presents no reason belief derived from facts and evi- for a cancellation of the verdict dence obtained since the trial and and judgment, because no fraud of which were not obtainable at that any kind is set up in connection time, that Harrold was not seri- therewith. There is no clain that ously injured. Then comes the the company was obstructed in the main averment, that the defen- acquisition or discovery of evidants conspired together to de- dence by the defendants or either fraud the company of a large of them, neither is it stated that sum of money by means of the ac- any effort was made to obtain the tion by charging and swearing that same before the trial. Harrold was seriously injured, The complaint presents no sufwhen they well knew he was not. ficient case for the interposition of Yet there is no statement here a court of equity to arrest the that they carried out the con collection of the judgment. A spiracy by swearing so on the trial. general rule on this subject is that

Deyo, Duer & Bauersdorf and chancery never interferes with J. H. Bergen, for applt.

courts of law on the same grounds Chauncey Shaffer and A. H. considered and denied by those Daily, for respts.

courts. Courts of equity will not Held, That it plainly appears interfere against a judgment at that the questions involved in this law, “unless the defendant in the case are precisely the same as those judgment was ignorant of the fact litigated and determined in the in question pending the suit, or it former action-that is, whether could not have been received as a Harrold was seriously and per- defense, or unless he was prevented manently injured ; because this from availing himself of the decomplaint states that was the main fense by fraud or accident, or the question submitted to the jury. act of the party unmixed with The verdict must therefore be re negligence or fault on his part." ceived as a determination that the 70 N. Y., 10. The complaint does injuries of Harrold were serious not bring the case within either of and permanent. It is true there these heads.

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