Allegany state park.

L. 1921, ch. 468. certify under its seal that the description is correct, and shall endorse thereon a notice that the property described therein is appropriated by the people of the state of New York for the purpose described in this section. The original of such description and certificate shall be filed in the office of the secretary of state. The Allegany State Park commission may make such additional copies of this certificate and description as may be necessary and certify the same.

3. Service of notice. The said commission shall thereupon cause a duplicate of said description and certificate, with notice of the date of filing thereof in the office of said secretary of state, to be served on the owner or owners of the lands, forests, and rights in timber upon such lands and waters so appropriated; and from the time of such service the entry upon and appropriation by the people of the state of the property described in such notice shall be deemed complete, and thereupon such property shall become, and be, the property of the people of the state. Such notice shall be conclusive evidence of an entry and appropriation by the state; but the service of such notice shall raise no presumption that the lands, forests and rights in timber upon such lands described therein are private property.

4. Manner of service. Service of the notice and papers provided for under subdivision three must be personal if the person to be served can be found within the state. If the said commission shall not be able to serve said notice and papers or to cause the same to be served upon the owner or owners personally within the state, after making an effort so to do which said commission shall deem to be reasonable and proper, service may be made by filing said notice and papers in the office of the county. clerk of the county wherein the property so appropriated is situated and by causing such notice and papers to be recorded in the books used for recording deeds in the office of said clerk. On the filing of said notice and papers with said clerk, it shall be the duty of said clerk to record same in the books used for recording deeds in the office of said clerk and to index the name of the person or persons to whom said notice is directed as a grantor in an index book to be kept by said clerk.

In case such service is made by filing said notice and papers in the office of the county clerk, any person so served may at any time thereafter file a claim with the court of claims, against the state, notwithstanding the two year limitation provided by this article or by article one, title three of chapter three of the code of civil procedure, excepting that if the person so served shall be brought in and made a party to any claim or proceeding pending in the court of claims or before a referee having jurisdiction to hear, try or determine a pending claim, such person so brought in and made a party shall not thereafter file a claim against the state on account of such appropriation, in addition to or in substitution for the claim to which he has been made a party, unless he shall file such additional or sub

stituted claim within three months from the time he is so brought in and

made a party.

5. Description and certificates to be recorded. If service be personal, the said commission shall thereupon cause a copy of such notice and papers, together with an affidavit of due service thereof on such owner or owners, to be filed and recorded in the same manner as provided in subdivision four, and it shall be the duty of said clerk to record and index same as provided in subdivision four in case service is other than personal; and the record of such notice, and of such proof of personal service, shall be presumptive evidence of due service thereof.

6. Adjustment of claims by agreement. Claims for the value of the property appropriated, and for legal damages caused by any such appropriation, may be adjusted by the commission, if the amount thereof can be agreed upon with the owner or owners thereof. Upon making any such adjustment and agreement the commission shall deliver to the comptroller a certificate stating the amount due to said owner on account of such appropriation of his land or other property, and the amount so fixed shall be paid by the treasurer upon the warrant of the comptroller.

7. Court of claims, jurisdiction of. If the commission and the owner or owners of the property so appropriated fail to agree upon the value of such property, or upon the amount of legal damages resulting from such appropriation, within one year after the service of the notice and papers provided for in section sixty-eight of this chapter, such owner may, within two years after the service of such notice and papers, present to the court of claims a claim for the value of such land and legal damages; and said court shall have jurisdiction to hear and determine such claim and render judgment thereon. Upon filing in the office of said commission, and in the office of the comptroller, a certified copy of the judgment of the court of claims, and a certificate of the attorney-general that no appeal from such judgment has been, or will be taken, by the state, or if an appeal has been taken, a certified copy of the final judgment of the appellate court affirming in whole or in part the judgment of the court of claims, the comptroller shall issue his warrant for the payment of the amount due the claimant by such judgment, with interest from the date of the judgment until the thirtieth day after the entry of such final judgment, and such amount shall be paid by the treasurer.

8. Court of claims to examine property. The court of claims, if requested by the claimant or the attorney-general, shall examine the real property affected by the claim of damages for the appropriation thereof and take testimony in relation thereto in the county where such property or a part thereof is situated.

9. Oil, gas, mineral and lumber rights may be excepted. The commission may except from the purchase of any lands or waters taken under this article, any oil, gas, lumber or mineral rights thereon, with the right

of access thereto, which exception must be stated in the description filed in the office of the secretary of state and in the notice served on the owner, as provided by this section.

Nothing in this section shall prevent the subsequent appropriation by the commission of any rights so excepted.

10. Adjustment of claims for trespass or other injuries. In cases of trespasses or other injuries to lands or property purchased or acquired by the state, the commission may settle and adjust any claims for damages due to the state on account of any such trespasses or other injuries to property or interests of the state, or penalties incurred by reason of such trespasses or otherwise, and the amount of such damages or penalties so adjusted shall be deducted from the original compensation agreed to be paid. for the land, or for damages, or from a judgment rendered by the court of claims on account of the appropriation of such land. A judgment recovered by the state for such a trespass or for a penalty shall likewise be deducted from the amount of such compensation or judgment.

11. Judgments. When a judgment for damages is rendered for the appropriation of any lands or waters for the purposes specified in this article, and it appears that there is any lien or incumbrance upon the property so appropriated, the amount of such lien shall be stated in the judgment, and the comptroller may deposit the amount awarded to the claimant in any bank in which moneys belonging to the state may be deposited, to the account of such judgment, to be paid and distributed to the persons entitled to the same as directed by the judgment.

12. Costs and disbursements; when offer made. If an offer is made by said commission for the value of land appropriated, or for damages caused by such appropriation, and such offer is not accepted, and the recovery in the court of claims exceeds the offer, the claimant is entitled to costs and disbursements as in an action in the supreme court, which shall be allowed and taxed by the court of claims and included in its judgment. If in such a case the recovery in the court of claims does not exceed the offer, costs and disbursements to be taxed shall be awarded in favor of the state against the claimant and deducted from the amount awarded to him; or if no amount is awarded, judgment shall be entered in favor of the state against the claimant for such costs and disbursements. If an offer is not accepted, it cannot be given in evidence on the trial.

8. Such commissioners are authorized and empowered, within such park, through their agents and employees, to enforce, in the name of the people of the state of New York, the penalties and conduct the prosecution set forth in the conservation law, and such commission shall have the power to create and establish closed seasons for fish and game within such park as in its judgment may be necessary for the propagation and protection of such game and fish, and may make suitable regulations for the capture, killing and transportation thereof, and such commission shall have power and authority to propagate game and fish for the stocking of the said

Allegany State Park, and to make regulations and rules which shall be binding upon all persons within the boundaries of the aforesaid Allegany State Park, whether upon lands owned by the state or otherwise for the purposes of fire, game and fish protection, and to establish and enforce suitable penalties for the violation thereof.

§ 9. Such commissioners shall have the power, in the name of the people of the state of New York, to acquire, maintain and make available for use as a public park, the lands located as aforesaid, and for this purpose shall have the power to take, in the name of the people of the state of New York, in fee or otherwise, by lease, purchase, gift, devise, or through the procedure heretofore set forth, the said lands or any of them, and any rights, interests and easements therein, and to receive by gift, devise or contribution, money to be used in acquiring and improving the said lands or any of them, and the said board shall also have power, in the name of the people of the state of New York, to receive and administer for park purposes, any gift or devise of personal property, or any land or rights in land outside the areas defined in said park, adjoining the same, and it shall be its duty to preserve, care for and lay out and improve the said park, and it shall have power to lay out, construct and maintain roads and pathways, over the said park, to dam the streams therein, except the main stream of the Allegany River, and to lay out and construct and maintain roads between and connecting any separate portiton of said park, and for this purpose to acquire rights of way upon and across any intervening lands, and authority is conferred upon such commission to build. and maintain roads across the Allegany Indian reservation for this purpose, and in case the state of Pennsylvania shall acquire lands for a state park, adjoining the lands herein described, to connect such roads with roads so laid out in the state of Pennsylvania and to maintain such lands within the state of New York so that the same may form a continuous park with the lands acquired by the state of Pennsylvania, and to do all things necessary in their judgment to carry out the purposes of this act.

§ 10. The sum of twenty-five thousand dollars ($25,000), or so much thereof as may be necessary, payable out of any moneys in the treasury not otherwise appropriated, is hereby appropriated to carry out the provisions of this act. No part of the said sum shall be available for any purpose specified in this act, until the certificate of the commissioners, provided to be appointed herein, has been filed in the office of the state comptroller, showing that the sum of twenty-five thousand dollars ($25,000) has been donated by individuals or corporations and deposited to the credit of the commission in a bank or trust company to be designated by the commission, to be used for some or all of the purposes specified in this act. Payments from said appropriation shall only be made upon itemized accounts, duly verified, certified and approved by the chairman of the commission, by the state treasurer on the warrant of the comptroller.

Abandoning disabled; Penal L., § 186. Corporations for prevention of cruelty; Membership Corporations L., §§ 121, 122-a. Diseases of domestic; Farms and Markets L., §§ 72-96, 172. Pure bred stock; Farms and Markets L., §§ 95-105. Ordinances regulating; Town L., § 142-a. Employment of veterinarians to examine for infectious or communicable diseases; Id., § 170, subd. 11. Physical examination; payment for when killed by state; Farms and Markets L., §§ 72-88. Registry certificate as evidence; Farms and Markets L., § 96.

APARTMENTS.

Discrimination against children in leasing; Penal L., § 2041.

Constitutionalitary of statute sustained. Matter of Berkovitz v. Arbib & Houlberg (1921), 230 N. Y. 261, 130 N. E. 288, revg. 193 App. Div. 423, 183 N. Y. Supp. 304. Application of statute extends to preexisting contract but not to pending action. Matter of Berkovitz v. Arbib & Houlberg (1921), 230 N. Y. 261, 130 N. E. 288, revg. 193 App. Div. 423, 183 N. Y. Supp. 304. Statute applicable to agreement made before its passage. Matter of Scott (1922), 234 N. Y. 539, affg. 200 App. Div. 599,

193 N. Y. Supp. 403. While the Arbitration Law provides for the enforcement of arbitration agreements, there is nothing in the law which prevents the parties agreeing between themselves to resort to any other method of settlement. A provision to arbitrate can be modified by a subsequent agreement based upon a consideration, or waived or abandoned by the agreement or action of the parties. A plaintiff waives the arbitration clause by bringing an action on the contract. A defendant makes his election when he answers setting up a counterclaim, gives notice of trial and procures an order to take a deposition in preparation for trial. Matter of Zimmerman v. Cohen (1923), 236 N. Y. 15, revg. 204 App. Div. 375.

The provision of the statute making arbitration agreements valid and enforceable and authorizing the staying of legal proceedings, merely provides a new