in rivers is incident to, and derived from, the ownership of the bed. Com. lib. 2, title 1, 4.

Grotius, writing in 1625, qualifies such ownership of river beds, limiting it to rivers relatively small, as compared with the extent of the bordering lands. De Jure Belli ac Pacis, lib. II, cap. III, § 7. But he passes on from rivers to bays and estuaries, which he shows were included in private estates. From these illustrations he reasons that larger portions of the sea may be so owned, saying:

"Since a portion of the sea may become part of a private estate, namely if it be included in the estate and is so small as to seem part of it, and since that is not repugnant to natural law, why should not a portion of the sea included within the territory of a people or of several peoples, be the property of those whose the shores are, provided that the size of that portion of the sea compared with the territory be not larger than the inlet of the sea, as compared with the estate." Lib. II, cap. III, § X, 2.

Therefore, under the Roman-Dutch law as recognized and practiced in the Netherlands at 1644, we find nothing against the grant of ports and havens in this charter to the newly formed town of Hempstead.

[4] Furthermore, an attraction possessed by Long Island for settlers, and one that drew colonists from New England, was the shellfish abounding in its bays and inlets. Naturally such settlers would seek to have the grants to them include the waters containing such a source of food supply. Such a grant to found a body politic or town, as we have seen, would involve no violation of Dutch law and custom, and would be the only effectual way to protect the natural shellfish beds from alien depredations. Therefore, on the internal evidence from the wording and form of these patents, and from the extrinsic facts as to the situation of the colony, we would not be justified in deleting from the scope of this charter this received and settled formula for the cession of ports, harbors, and inland waters.

The conclusion that these patents embraced the waters of Manhasset Bay was also the ground upon which the commissioners of the land office were advised by Attorney General Tabor in 1890, acting with the state engineer and surveyor, to deny an application for these lands under water, by this same appellant, since the Attorney General there held that the town had made sufficient proof of its title through these colonial grants. Such an opinion, though administrative, binds the departments, and is entitled to weight as proceeding from the law officer of the state. People ex rel. Snyder v. Hylan, 212 N. Y. 236, 240, 106 N. E. 89.

Appellant cites Town of North Hempstead v. Eldridge, 111 App. Div. 789, 796, 98 N. Y. Supp. 157, 161; but this dealt with lands under Little Neck Bay, which the learned referee found were outside of, and to the westward of, these boundaries. He did not pass on the northern bounds of these patents, as he stated:

"As to these northern limits no controversy had arisen or seemed likely to arise."

In 1669, before the Dongan patent, Hempstead at a general town meeting voted that the north boundary of their patent was the Sound. Since 1686, the town had taken control over the waters and the shores

of these harbors. It has passed regulations over fishing, as well as touching the building and maintenance of docks, which powers and authority it has continued actively to exercise up to the present time. This long usage constitutes the best exposition of the grant. Trustees of Brookhaven v. Strong, 60 N. Y. 56, 72. Hence it must be held, as in Tiffany v. Oyster Bay, supra, that the state had not title to the property which it assumed to grant to this plaintiff.

I advise, therefore, that the judgment and order be affirmed, with costs. All concur.

(S9 Misc. Rep. 440)

GOTTESMAN v. BARER et al.

(Supreme Court, Appellate Term, First Department.

March 18, 1915.)

1. LICENSES 39-ACTION BY LICENSEE FOR COMPENSATION-PLEADING. Under Greater New York Charter (Laws 1901, c. 466) §§ 415, 416, as amended by Laws 1913, c. 754, requiring master plumbers to register and receive certificates, one suing for services as a master plumber must allege such registration and possession of certificate; but if it does not appear on the face of the pleading that the work and services were those of a master plumber, but the evidence shows a contract as a master plumber and work under the contract, it is then incumbent to show registration in pursuance of the statute.

[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 76-78; Dec. Dig. 39.]

2. LICENSES 38-PLUMBERS' LICENSE-RESCISSION OF REVOCATION.

Plaintiff sued to recover for services rendered as a master plumber, and showed that in 1912 he had received a license from the examining board of plumbers, which was revoked in May, 1913, for fraud in the examination and application, but that in April, 1914, the board's minutes recited that, plaintiff having submitted to a new examination in March, the board having gone over his examination papers and found him qualified, it authorized the issuance of a certificate, "and rescinds its prior action in refusing to issue the same." Held, that such action was, when read with the context, not a rescission, giving the certificate any effect during the period it was revoked, and he could not recover for services performed as a master plumber during such period.

[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 74, 75; Dec. Dig. 38.]

3. LICENSES 39-ACTION BY LICENSEES FOR COMPENSATION.

Where plaintiff sued on an entire contract for labor and services, part of which were for those of a master plumber, when he held no certificate as a plumber, the entire contract was invalid, and plaintiff could not recover on such part as was not for plumbing work.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. §§ 76-78; Dec. Dig. 39.]

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Morris Gottesman against Isaac Barer and another. From a judgment for plaintiff, defendants appeal. Reversed, and complaint dismissed.

Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ.

Joseph B. Boudin, of Brooklyn, for appellants.

Samuel Hellinger, of New York City, for respondent.

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GUY, J. The complaint was framed for a balance alleged to be due for work, labor, and services. The evidence introduced to establish the plaintiff's case showed that as a master plumber he performed the work in question between January 12 and February 6, 1914, in the improvement of the defendants' real property in the borough of Brooklyn, city of New York.

Sections 415 and 416 of the Greater New York Charter, as added thereto in 1913 (Laws 1913, c. 754), provide that once in each year every master plumber shall register his name and address at the office of the bureau of buildings in the borough of the city in which he performs work, and thereupon he shall be entitled to receive a certificate of registration, if he holds a certificate from the examining board of plumbers of said city and is a citizen of the United States; that it shall not be lawful for any person to engage in, perform, or carry on the trade or business or calling of employing or master plumber in the city of New York, unless such person shall have been registered as therein provided.

[1] This statute is a substantial re-enactment of chapter 803 of the Laws of 1896, and it was held in Milton Schnaier & Co. v. Grigsby, 132 App. Div. 854, 117 N. Y. Supp. 455, an action which construed the 1896 statute, that such registration was a condition precedent to the right to engage in the business of master plumber, and must be pleaded and proven as a part of the plaintiff's affirmative case in an action to recover for plumbing work. This decision was affirmed by the Court of Appeals (199 N. Y. 577, 93 N. E. 1125) upon the opinion of Mr. Justice Scott in the Appellate Division.

The complaint in this action was not demurrable because, although no allegation was made of registration in pursuance of the statute, it did not appear on the face of the pleading that the work, labor, and services for which recovery was sought were those of a master plumber; but when the plaintiff's evidence showed that he had made a contract as a master plumber, and that the work under such contract, for which he sought a recovery, was performed by him in the borough of Brooklyn, it was incumbent upon him to go further and prove registration in pursuance of the statute.

By reason of the plaintiff's failure to make such proof, no cause of action was established, and the complaint should have been dismissed. Milton Schnaier & Co. v. Grigsby, supra. And see Wood & Selick v. Ball, 190 N. Y. 217, 83 N. E. 21; Johnston v. Dahlgren, 166 N. Y. 354, 59 N. E. 987.

[2] The plaintiff's testimony shows, however, that in June, 1912, he received a license from the examining board of plumbers (see sections 1573 and 1574 of the Greater New York Charter, added by chapter 755 of the Laws of 1913); that on May 9, 1913, the board revoked his license for fraud in passing the examination upon which the certificate was issued and for making false statements in his application; that in July, 1913, upon the plaintiff's application, the board declined to issue a certificate to him because of his fraud in the examination, but that on April 22, 1914, several months after the perform152 N.Y.S.-9

ance of the work in question, the board, as shown by the minutes of its meeting on that day, took the following action:

"The following named persons having submitted to a new examination in March, and the board having gone over their examination papers and having found them to be qualified to engage in business as master plumbers, it hereby authorizes the issuance of their certificates and rescinds its prior action in refusing to issue the same: Morris Gottesman, 117 Columbia street, Manhattan," etc.

Not only, therefore, did the plaintiff fail to prove the essential element of registration in his effort to establish a cause of action, but his own testimony showed affirmatively that between May 13, 1913, and April, 1914, he had no plumber's license, so that he had no license at the time he made the contract and did the work in question.

It is clear that the so-called rescission of the action of the board, mentioned in the minutes of its meeting of April 22, 1914, when read in connection with the context, was really no rescission; it was merely a change of action by the board, based on the fact that since the prior refusal in July, 1913, to reissue a certificate, the plaintiff had passed a new examination.

[3] It is claimed by the appellants that some of the work done by the plaintiff was not plumbing work, and therefore the statute is inapplicable. To this contention it is a sufficient answer that the contract sought to be enforced was an entire contract, so that, if void in part, it is void altogether. See Johnston v. Dahlgren, 166 N. Y. 354, 59 N. E. 987; Rose v. Truax, 21 Barb. 361; Saratoga County Bank v. King, 44 N. Y. 87; Meguire v. Corwin, 101 U. S. 108, 112, 25 L. Ed. 899.

It follows that the judgment appealed from should be reversed, with costs, and the complaint dismissed, with costs. All concur.

LAWRENCE v. LITTLEFIELD et al. (No. 6712.)

(Supreme Court, Appellate Division, First Department.

1. EXECUTORS AND ADMINISTRATORS

OF SALE.

March 12, 1915.) 138-CONSTRUCTION OF WILL-POWER

Where a testatrix devised a share of her residuary estate, which consisted principally of unproductive real estate, to trustees for plaintiff for her life, with remainders over, and gave to her executors, who were the same individuals as the trustees, power to sell the real estate, or any part thereof, and to apply such portions of the proceeds as they deemed proper to the payment of taxes and assessments thereon, and to pay the surplus to the trustees, the power of sale was to be exercised by the executors as such, and was wholly discretionary with them, and the only right of the trustees was to the surplus from such sales as the executors might make.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 560-566, 568-575; Dec. Dig. 138.]

2. WILLS

728-CONSTRUCTION-LEGATEE FOR LIFE-INCOME. Whether the power of sale were discretionary or mandatory, the trus tees could have no property to invest until they received the surplus of the sales from the executors, and consequently there would be no income For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

for the legatee for life until the surplus from sales was paid to the trustees.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1759-1780; Dec. Dig. 728.]

3. WILLS

728-CONSTRUCTION-LEGATEE FOR LIFE-INCOME.

The rule that where the income of a particular fund is bequeathed for life, or there is a bequest of a life estate in a residuary fund, the legatee is entitled to the income computed from the death of the testator, if the will evidences no contrary intent, is a rule of construction, and not of property, and does not apply where there is a devise of unproductive realty to trustees, with an absolute power to executors to convert, at their discretion as to time, and where the conversion has been justifiably delayed, and there has been a loss and not a profit during the delay. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1759-1780; Dec. Dig. 728.]

4. JUDGMENT

713-CONCLUSIVENESS-CONSTRUCTION OF WILL.

A judgment in an action to construe a will, in which all the legatees were parties, is conclusive in a subsequent action by a legatee for life to recover income computed from the death of testatrix.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. 713.]

5. CONVERSION 16-EFFECT-DIRECTIONS IN WILL-INCOME

Where a will directed the sale of unproductive real property by the executors, at their discretion as to time, the doctrine of equitable conversion does not require the law to treat the estate as producing an income, where no income has been earned, and there is no right thereto, except under that doctrine.

[Ed. Note.-For other cases, see Conversion, Cent. Dig. §§ 38-40, 42, 43; Dec. Dig. 16.]

Appeal from Special Term, New York County.

Action by Julia M. C. Lawrence against Charles E. Littlefield, as administrator with the will annexed of the estate of Mary G. Pinkney, deceased, and others. From orders (147 N. Y. Supp. 760) overruling the defendants' demurrers to the complaint, the defendants appeal. Reversed, and demurrers sustained.

The complaint set forth the following facts: Mary G. Pinkney died in December, 1908, leaving an estate consisting of personalty valued at about $700,000 and real estate valued at that time at about $8,000,000, nearly all of which was unimproved and unproductive, and has since suffered a continuous depreciation in value. By the eighth clause of her will, after making certain bequests of inconsiderable value, all of which have been paid, and certain devises of specific pieces of real property, she divided the residue of her real and personal estate into four parts, of which she gave absolutely to each of her nephews Thomas and Archibald one part. To her niece Grace she gave one-half of one part absolutely, and the remaining half to her executors in trust to pay the income thereof to Grace for life, with remainder over to the children of Grace. One part she gave to her executors in trust to invest and pay the income to the plaintiff (also a niece) for life, with remainder over to her children. By the ninth clause, in the event of the death of either of her nephews or nieces before the testatrix, leaving issue, the share of the one so dying was devised to such issue; but, in default of any such issue, the share of the deceased nephew or niece was to be divided equally among his or her surviving brothers and sisters, "the whole of such part or share as may then fall to" the plaintiff and one-half of that "then" falling to Grace to be held by the executors upon trusts as aforesaid, and the other half of Grace's share to be taken and enjoyed by her absolutely. The tenth clause was as follows: "I give unto my executors

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