The case had been tried before Mr. Justice Fitts before I assumed office. Owing to his death, it was necessary to retry the case and submit the issues to Mr. Justice Chester for determination. His decision sustained the position of the State holding the contract invalid, and directing a conveyance of the entire property from Cornell University to the State.

LEHIGH VALLEY RAILROAD COMPANY vs. THE

CANAL BOARD.

In the construction of the Barge Canal, it is necessary in many cases to raise railroad bridges crossing the present canal and crossing rivers which are to be canalized in the improvement of the new canal. The statute is not clear as to whether the expense thus caused shall be borne by the State, the municipalities or railroad companies owning the bridges. An action was brought by the Lehigh Valley Railroad. Company against the Canal Board to determine this question. This action was tried before Mr. Justice Foote at Rochester. The particular bridge in question was the one crossing the Seneca river near Jack's Reefs. Testimony was introduced by the State to show the navigable character of this stream. The railroad urged that the Legislature, in the Barge Canal Act, indicated no intention to compel the railroads to bear the expense of altering their bridges. The judge decided in favor of the railroad company upon this ground, although making findings favorable to the State as to the navigability of the river. If, therefore, your honorable body intended or intends to have the expense of altering or raising these bridges borne by the railroad companies, such intention should be clearly expressed in an amendment to the act which will be unambiguous. The judgment in favor of the railroad company has been appealed from on behalf of the State.

PEOPLE er rel. LESLIE

SUTHERLAND, FORMER

COUNTY CLERK OF WESTCHESTER COUNTY. Under the administration of former State Comptroller Glynn, an examination of the accounts of the county clerk of Westchester county was conducted. As a result, it was claimed that Leslie Sutherland, a former county clerk, had received upwards

The report

of $60,000, to which he was not legally entitled. pointed out that these charges had been made by his predecessors and he had apparently acted in good faith. At Mr. Sutherland's request the Governor called upon me to institute an action to determine the legality of their payment. An action was brought and turned over to a referee, who decided in favor of the defendant on the sole ground that since the charges had been audited by the board of supervisors they could not be collaterally attacked in this action. An appeal has been taken from this decision of the referee.

SARANAC LAND AND TIMBER COMPANY vs. ROBERTS AS COMPTROLLER.

Most of the land owned by the State in the forest preserve was acquired at tax sales. In 1885 an act was passed to quiet the title derived from such sales and making the conveyance of the Comptroller conclusive evidence of the legality of the sale. At the same time an act was passed permitting the Comptroller to advertise for six months, a list of the lands owned by the State in the forest preserve and providing that he should thereupon be considered in possession of such land. He did this in 1894. In 1894 and 1895, the Saranac Land and Timber Company which had acquired the underlying title to a large part of Township 24 in Franklin county instituted two actions in the Federal Court and two actions in the State Court against James A. Roberts, the then comptroller, to eject him from possession. One of the actions in the Federal Court was tried and decided in favor of the State, the court holding that the curative act of 1885 rendered the State's title unimpeachable. This decision was sustained by the United States Supreme Court. Following this decision the plaintiff secured an order for a new trial under the Code of Civil Procedure upon payment of costs but never brought the case on for trial. In 1904 the company moved one of its actions in the State Court to trial. A referee decided in favor of the company. This decision was sustained by the Appellate Division and the Court of Appeals, it being held that the curative act of 1885 had no effect against the State until such time as the Comptroller by advertising under the act in 1894 put himself in possession of the lands so as to give the original owner opportunity to litigate his claim of title in the courts.

In view of the fact that the State on the first trial of this case. had relied almost entirely on the act of 1885 and had made scarcely any effort to attack the alleged title of the plaintiff, it seemed to me that a new trial should be had. Accordingly I secured an order permitting a new trial. The case was tried before the Hon. Richard L. Hand, the referee appointed by the Court. No decision has as yet been announced.

PEOPLE ex rel. PHILLIPS vs. RAYNES.

Section 190 of the Labor Law provides that no convict-made goods shall be sold without a license in this State. Section 193 provides that all convict-made goods shall be branded with the words" Convict Made." The latter section had been held unconstitutional. It was uncertain, however, whether the same reasoning rendered section 190 of the act invalid. A case was brought to determine this question. The Court of Appeals held that the decision holding section 193 unconstitutional, applied equally to section 190. The ground of the decision was that it interfered with interstate commerce. It would seem to follow that if this requirement is desirable, Federal legislation permitting the State to pass laws upon this subject would validate both these sections.

SANTA CLARA LUMBER COMPANY CASE.

The Appellate Division, Third Department, at the May, 1910, term, unanimously affirmed an order of the Special Term vacating and setting aside a judgment and the order and stipulation. upon which such judgment was obtained in the case of People v. The Santa Clara Lumber Company.

The judgment thereby vacated was obtained in an action brought by DeWitt C. Middleton, as Forest, Fish and Game Commissioner, to recover the value of cedar trees alleged to have been cut by the defendant from lands of the State in the Forest Preserve. Immediately following the joinder of issue in the case a stipulation. was entered into between Middleton and the defendant "settling and compromising" the said action and an order and judgment was entered thereon dismissing the complaint on the merits and confirming in the defendant the title to a large tract of land from

which the trees had been taken and also granting to the defendant other timber and water rights of great value.

It was contended by Mr. Jackson, my predecessor, and myself that this judgment was obtained by fraud and was further in violation of the Constitution and statutes of the State.

ACTIONS TO DISSOLVE CORPORATIONS AND TO ANNUL CORPORATE CHARTERS.

During the past year several actions have been brought to dissolve corporations and to annul their charters under the provisions of sections 101 and 131, respectively. The greater part of these actions arose where the corporations proceeded against were exercising privileges or franchises not conferred upon them by law. All of these actions have been successfully finished excep: two brought during the month of December, which are now pending.

PROCEEDINGS INVOLVING POSSIBLE ESCHEATS. In cases where persons die leaving no known heirs or next of kin, the State is interested either as the representative of unknown heirs and next of kin, or in case none such appear, to preserve the estate for the State to which it then escheats. Under the Code, although the provisions are not entirely clear, it is customary to cite the Attorney-General in such cases. It is of the utmost importance that the Attorney-General should be represented in these cases from the beginning, because of the unnecessary and extravagant manner in which such estates are frequently administered. In one estate, consisting of $1,300, money in bank, the expense of administration was $1,190. In another, consisting of $23,000, stocks and bonds, $5,000 was expended in administration. In still another of $2,300, $1,400 was so expended, and the administrator on the stand frankly testified that it was his obje t to expend as much as possible because he thought the State would get what was left anyway. It would, therefore, seem to be imperative that the provisions of the Code be amended, particularly those applicable to the city of New York, providing clearly that the citation in every such instance be served upon the Attorney

General. In that way, both in cases of intestacy, and in cases in which instruments purporting to be wills of the deceased are offered, the interest of the State and the interest of unknown heirs and next of kin would be much more adequately protected.

CLAIMS TO WITHDRAW FUNDS FROM THE STATE TREASURY.

During the year various claims to withdraw funds on deposit with the State Treasurer have been made. Most of these arose from the claims of alleged unknown heirs and next of kin of persons who have died intestate. In many instances the proof of relationship offered is extremely inadequate. During the past year such claims, amounting in the aggregate to more than $30,000, have been opposed by me successfully, while approximately $6,000 has been paid out by the Comptroller under such claims that have been established.

APPLICATION OF WILLIAM S. REYNOLDS et al. TO REVIEW THE PRESENT APPORTIONMENT OF THE STATE INTO SENATORIAL AND ASSEMBLY DISTRICTS.

In the early part of November the Governor, the President of the Senate, the Speaker of the Assembly and the Attorney-General were served with papers in the above matter, which is an application to the Supreme Court for an order vacating the apportionment made by the Legislature of 1907 for the various senatorial and assembly districts in the State, and adjudging that the apportionment as made by the Constitution of 1894 was still in effect. The main question raised is the power of the Legislature to make such an apportionment at an extraordinary session even though the attempt to do so had been made at the regular session and had failed. This case has not yet been argued.

PEOPLE rs. FRANK GASS.

This action was brought against the former register of New York county to recover the amount of a mortgage tax which should have been collected by him. The Park Row Realty Company conveyed certain premises in New York City situate on