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tained the public right of passage along the foreshore, and directed the removal of parts of the structures complained of (or a change of the structures or those supports which interfered with public access), with the exception of the jetty at the west line of the park (No. 1 above), the pier with the iron pipe (No. 3), and the boardwalk upon piles, known as Tilyou's Walk (No. 4 above), provided they are modified so as to let people pass beneath. 82 Misc. Rep. 247, 143 N. Y. Supp. 503. Only the Steeplechase Park interests and Emilie Huber have appealed.

[1] The legal right of access to the foreshore is contested, as to the Huber patent, which ran to Huber without qualification. This patent was applied for and granted to her as owner of the adjacent uplands. The learned justice at Special Term held that such a grant, though unqualified in form, not being to promote commerce of the state, must be deemed subject by necessary implication to the right of the public. It was clearly beyond the power of the commissioners of the land office to convey an unqualified fee of such foreshore for private purposes. Matter of Long Sault Developing Co., 212 N. Y. 1, 105 N. E. 849; Coxe v. State, 144 N. Y. 396, 406, 39 N. E. 400. There was no question as to the other grants, since they are in terms expressed to be subject to the rights of the public, by a restriction similar to that in Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378, 385, 85 N. E. 1093, 127 Am. St. Rep. 962.

The court below had to pass on intricate questions of fact, and details of measurement, as well as to alleged fluctuation in the shore lines. The structures in question were erected at different times since the year 1904. Both appellants sought to have the court find, as facts, that both before and since the structures had been put up the sea had encroached violently, taking away the shore by avulsion. But in view of all the testimony the learned court was justified in declining these requests.

Upon this appeal, an issue is raised as to the correct line of mean high water. The proof of this datum has been misconceived. At the Battery in Manhattan there has long been kept a daily tidal record. Its average has been established; from this datum, or that at the Navy Yard, are computed all surveys of elevations, whether out on Long Island or up the state. The corresponding levels are indicated by bench marks, one of which is cut in the middle bridge pier in Coney Island creek. From this, levels are run to fix the equivalent height along the beach, with a rise at Coney Island of two-tenths of an inch, the difference of tidal elevation at Coney Island above that at the Battery. When this horizontal plane has been extended to the actual shore, the contour lines of high and low water are surveyed laterally and staked out along the beach, regardless of what may then have been the accidental state of the water. These high and low water lines are shown by diagrams, but the dates upon the diagrams are of the times of the above surveys, not when the water level was determined.

[2] It is argued that these structures are not purprestures or nuisances. The term “purpresture” is not limited to an encroachment on a public right of way on land, but applies to any invasion of sovereign rights along the seashore or the waters fronting same. Weber v. Harbor Commissioners, 18 Wall. 57, 65, 21 L. Ed. 798. A reading of all

the proofs, with a study of the exhibits, confirms the conclusions that these structures did so invacie and block the public rights of free passage.

[3] We cannot hold that the state is estopped by suffering any of these structures to be built without protest. 16 Cyc. 780.

Here is an instance of the agents of the state, the commissioners of the land office, in the Huber grant, exceeding their authority; and this is not cured by subsequent inaction by state officials. The judgment restores the public right of shore access, with as little interference with the Steeplechase structures as the circumstances admit. The Huber jetty is allowed as a guard to the beach, to protect defendant's land from the inroads of the sea (Rex v. Commissioners of Sewers of Pagham, 8 Barn. & Cress. 355), provided means are taken to let the public go over or around it. So as to the pier, if its pipe shall be raised to a height of 7 feet, to leave sufficient headroom to pass beneath. The Tilvou boardwalk is also to remain, notwithstanding its long projection above the foreshore, if defendants provide below it suitable means for public passage.

[4] In the absence of any appeal by the Attorney General, we cannot consider his exceptions to the conclusions of law, and to the related portions of the decree, which permit defendants to keep the Huber jetty and the Tilyou boardwalk. The settled rule that an appellee, who takes no cross-appeal, can be heard only in support of the decree, is one necessary for the court, and essential to advise the opposing litigants. Burns v. Burns, 190 N. Y. 211, 82 N. E. 1107; St. John v. Andrews Institute, 192 N. Y. 332, 85 N. E. 143. It still binds this court, notwithstanding the enlargement of its powers to make new findings and to render final decrees, conferred by Laws of 1912, c. 380, amending section 1317, Code of Civil Procedure.

I advise, therefore, to affirm the judgment, with costs. All concur.

(165 App. Div. 690)

CROWELL V. SCHNEIDER. (No. 349-S6.) (Supreme Court, Appellate Division, Third Department. January 6, 1915.) LIBEL AND SLANDER (8 85*)-COMPLAINT-SUFFICIENCY.

Where the complaint to an action for slander stated that defendant told several persons that plaintiff was caught in the cellar with her employer, and that his wife attempted to commit suicide on account thereof, and alleged, as innuendo, that defendant implied that plaintiff was guilty of adultery and other improper conduct, but failed to allege the particular words used by defendant, it was demurrable.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. $8 201204; Dec. Dig. $ 85.*] Appeal from Special Term, Chenango County.

Action by Rosa A. Crowell against Edith F. Schneider. From interlocutory judgment overruling demurrer to the complaint, plaintiff appeals. Reversed, and demurrer sustained, with leave to amend. .

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

David F. Lee, of Norwich, for appellant.
Frank W. Barnes, of Norwich, for respondent.

LYON, J. The interlocutory judgment appealed from overruled a demurrer which was interposed to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The action was brought to recover both special and general damages on account of alleged slander of the plaintiff by the defendant.

The complaint alleged that the plaintiff, who was a married woman, was employed as a clerk in a dry goods store conducted by Le Tarte and wife; that Mrs. Le Tarte attempted to commit suicide at such store; that thereafter “the said defendant has falsely told many people, many of whom are unknown to this plaintiff at this time, among wliom are Sarah A. Taylor and Mary E. Dimmick, that this plaintiff had been caught in the cellar with Joseph A. Le Tarte, and that Mrs. Le Tarte had attempted to commit suicide on account of the discovery of her husband and the plaintiff in the cellar together”; that "the defendant told the foregoing false statements, in substance, to each of the persons mentioned above in this paragraph and to many others unknown to this plaintiff.”

The plaintiff then alleges, as innuendo, that the defendant implied and charged that the plaintiff .was guilty of adultery with Le Tarte, and willing to submit to the unlawful embraces of a man. The defendant justifies the interposition of the demurrer upon the ground of the failure of the plaintiff to set forth the particular words complained of as constituting the slander, and upon her alleging that said false statements were made in substance to the persons named, and to many others.

That the particular words constituting the alleged libel or slander must be set forth has frequently been held. In Wormouth v. Cramer, 3 Wend. 395, it was said that, where the alleged defamatory words were uttered in a foreign language, they must be set forth in the complaint in the language in which they were uttered, followed by an averment in English of their signification, and that, having been uttered in German and set forth in English, there was a variance which justified a nonsuit. In Keenholts v. Becker, 3 Denio, 346, it was said:

“In slander, as in other actions, the plaintiffmust prove his case as stated in his declaration; if he cannot utter the words in the English language, he cannot support his action by proof of like words spoken in another tongue."

To the same effect, Lettman v. Ritz, 3 Sandf. 734.

In Battersby v. Collier, 34 App. Div. 347, 54 N. Y. Supp. 363, it was said:

"In actions of this kind, the words complained of as used by the defendant must be set out in the complaint, and it is not sufficient to set out the tenor and effect of them. This is necessary in order that the court may judge whether the words constitute a cause of action, and also because the defendant is entitled to know the precise charge against him and cannot shape his case until he knows it. It is not sufficient to give the substance or purport of the libel with innuendoes."

151 N.Y.S.-11

In Germ Proof Filter Co. v. Pasteur Chamberland Filter Co., 81 Hun, 49, 30 N. Y. Supp. 584, it was held, citing many cases, that a complaint in an action brought to recover damages for slander, which does not allege the particular words spoken by the defendant constituting the slander and for the uttering of which damages are demanded, is bad. In the case of Drohan v. O'Brien, 76 App. Div. 265, 78 N. Y. Supp. 430, it was held that the complaint in an action for slander, which alleges that the defendant uttered certain slanderous words, which are specifically set forth, "or words of like purport, meaning and effect," is demurrable, as it does not charge that the defendant used any particular words. This holding was approved in Deddrick v. Mallery, 143 App. Div. 819, 127 N. Y. Supp. 1023.

Undoubtedly, upon the trial of the action under the complaint as now framed, the plaintiff would claim the right to prove the uttering of language amounting, in substance under her construction of it, to the charge alleged in the complaint; that is, language of the import, tenor, and effect of the language alleged in the complaint.

We think the complaint does not state a cause of action, and that the interloctuory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend on the payment of said costs. All concur.

(165 App. Div. 842)

In re MacNEIL. (Supreme Court, Appellate Division, Fourth Department. January 6, 1915.) 1. PARTNERSHIP (8 153*)—LIABILITY—MISAPPROPRIATION-ESTOPPEL.

A wife and a daughter of full age, having no interest in the property of the husband and father, except as heirs presumptive, who consented to defendant's appointment as committee for the husband's property, with the understanding that defendant's partner should have the custody and management of the property, were not estopped from holding defendant liable for misappropriation by his partner, unless, when consenting, they had full knowledge of all the material facts, and of the effect of their consent upon their legal and equitable rights.

(Ed. Note.-For other cases, see Partnership, Cent. Dig. 88 274–277;

Dec. Dig. § 153.*] 2. INFANTS ($ 5*)-PROPERTY RIGHTS-ESTOPPEL.

In such case an infant son was not estopped by any consent he may have given while an infant, in the absence of ratification by him of the arrangement after he became of age with knowledge of the facts.

[Ed. Note.-For other cases, see Infants, Cent. Dig. 88 5, 7; Dec. Dig.



On appeal from the final order for an accounting in a proceeding by a widow, as administratrix, against defendant, who had been the committee of the husband's property, held, on the evidence, that the case would be remanded for a new trial or hearing on the question whether the dealings of the defendant's partner, having custody and management of the property, and who had misappropriated it, amounted to notice to defendant, and called for affirmative action on his part.

[Ed. Note.--For other cases, see Insane Persons, Cent. Dig. 88 64-67; Dec. Dig. $ 42.*]

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

Appeal from Special Term, Chemung County.

Petition of Eva A. MacNeil, as administratrix of Rufus R. MacNeil, deceased, for an accounting by Dix W. Smith as committee. From a final order adjudging him accountable in a certain sum, Smith appeals. Transferred from Third Department. 149 N. Y. Supp. 1095. Order reversed, and new trial ordered.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.

W. E. Knapp, of Elmira (E. J. Baldwin, of Elmira, of counsel), for appellant.

Richard H. Thurston, of Elmira, for respondent.

PER CURIAM. We should have no difficulty in affirming the order appealed from, but for the fact that some of the findings made at the request of defendant are inconsistent with and may require a different conclusion from that reached by the court below in its decision. By the findings so made at the request of the defendant it is found, in substance, that the defendant gave his consent to be appointed as committee on the understanding between himself and the petitioner and her two children that John Bull, Jr., should take entire charge of the estate and of the assets thereof, and do all the work, and that Smith should be relieved from all responsibility connected with the care of the estate, and should receive no compensation or commission as committee.

At this time Rufus R. MacNeil was the sole owner of the property now in question. His wife, Eva, the petitioner, and daughter, Fannie, and son, Charles, who are now his sole next of kin, had no interest in such property, except as heirs presumptive of their father. At this time the daughter, Fannie, was of full age; but the son, Charles, was not. The petitioner, as administratrix, now represents the rights of herself as widow, of her children, and of the creditors of her husband, if any there be. It does not appear whether there are creditors of the husband or not.

[1] It is at least doubtful whether the evidence justifies a finding that petitioner, the wife, or either of her children, consented that John Bull, Jr., should have the custody of the principal of the estate or the securities in which such principal was or was to be invested, and it is not claimed that Rufus R. MacNeil, the husband and father, ever so consented. But, if petitioner and her daughter did so consent, they would not be estopped from holding defendant, as committee, liable for the loss of the estate because of the misappropriation thereof by John Bull, Jr., unless at the time they gave their consent they had full knowledge of all the material facts, and were apprised of the effect of such consent upon their legal rights, and were apprised of the law, and how these facts would be dealt with by a court of equity. 1 Beach on Modern Equity Jurisprudence, § 244. Or, as it is put by another learned authority:

"The cestui que trust must have full knowledge of all the facts and circumstances of the case. He must also know the law, and what his rights are, and how they would be dealt with by the court.” 2 Perry on Trusts and Trustees (6th Ed.) 8 851.

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