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the devotion of the same to the propagation or protection of fish, birds, or game, by reason of the fact that waters included in said private park had been theretofore stocked with fish by the state of New York. It is not claimed that the lands and waters included in said private park have been stocked with fish by the state at the request or with the consent of the plaintiff. The lands and waters so included in said private park were purchased by the plaintiff in three separate tracts, each tract including a large number of acres. When waters are stocked with fish by the state, it takes away from the owner thereof certain property rights provided by said statute, and results in a charge to run with the land, which materially affects the owner's interest therein, and the value of said lands and waters. The consent to such charge is bounded by the extent of the ownership of the person giving the consent. Within the bounds of the lands and waters owned by the person giving the consent, there may be a question as to the extent of the waters included within the consent, and as to one stream or portion of the stream being reasonably near to the waters so stocked with fish by the state. A question cannot arise as to whether another stream, or a distinct portion of the same stream, is reasonably near to waters stocked with fish by the state, when such other stream, or distinct portion of the same stream, is beyond the boundaries of the lands and waters owned by the person giving his consent to such stocking by the state. The charge runs with the land, and not with the person, and it is fixed at the time the consent is given, and the waters are stocked in pursuance, thereof. It cannot be extended to other lands and waters simply by reason of the fact that the grantee of the waters stocked with fish by the state and of adjoining or other lands and waters is one and the same person. The lands and waters upon which the defendant trespassed were wholly lands and waters purchased by the plaintiff of the Ducey Lumber Company: It follows, therefore, that all of the evidence included in the record relating to lands purchased by the plaintiff of other persons is immaterial, for the purpose of showing that they are reasonably near to the lands purchased of the Ducey Lumber Company.
It is claimed by the defendant that the Ducey Lumber Company consented to persons who were strangers to their title stocking the waters upon lands so owned by it with fish furnished at the expense of the state. The evidence shows that one Ducey, who, it is alleged, was the president of the Ducey Lumber Company, assented orally to certain persons stocking the St. Regis waters with trout. Assuming that the waters included in said private park at the place where the defendant fished were so stocked pursuant to said consent, it becomes important to determine whether the corporation was bound by such assent, so as to make a charge on its lands, even in the hands of a bona fide purchaser from it. The certificate of incorporation shows that the Ducey Lumber Company was organized "for the purpose of carrying on and conducting the manufacture of lumber, lath, shingles, shooks, ties, pickets, charcoal, wood pulp and other products of the forest." The by-laws of the corporation provide:
and 123 New York State Reporter “The notes, drafts, and other obligations of the company, as well as its checks on banks, shall be signed by the president; he shall also sign and execute all contracts, leases, deeds, or other written instruments relating to the sale or conveyance of any real estate belonging to the company and affix the corporate seal thereto. The president is also authorized and empowered to make all contracts for the corporation, relating to the manufacture and sale of lumber, and all business carried on by the company, including sales of its real estate, or contracts to sell or lease the same."
The office of president does not in itself confer power to bind a corporation or control its property. The president's power as an agent must be sought in the organic law of the corporation or in a delegation of authority from it, directly or through its board of directors, formally expressed, or implied from a habit or custom of doing business. 10 Cyclopedia of Law & Procedure, 903. The stocking of waters with fish furnished at the expense of the 'state was not one of the purposes for which said corporation was organized, and the consent not being within the purposes of the corporation, or in the usual course of its business, or incidental thereto, the president had no power to make it without express authority. Said by-law constitutes the only evidence relating to the authority of the president. The consent was not a contract relating to the manufacture and sale of lumber, or to any business carried on by the company. The statements claimed to have been made by Mr. Ducey to the persons who desired to obtain from the state fish to be placed in certain waters of the Adirondacks do not purport to have been made by him on behalf of the Ducey Lumber Company. His consent was voluntary, gratuitous, and personal. He did not assume to bind the corporation, and could not have done so, in a matter so wholly foreign to the ordinary transactions of the business of the corporation, without express authority.
The documentary evidence received by the County Court is not sufficient to show that the waters of the plaintiff on lands other than those purchased of the Ducey Lumber Company have ever been stocked by the state.
The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.
(Supreme Court, Appellate Division, First Department. June 29, 1904.) 1. DISCOVERY-MODE OF PBOCURING-DEPOSITIONS-ORDER OF PRODUCTION
Under Code Civ. Proc. $ 872, subd. 7, providing for the taking of a deposition where the party sought to be examined is a corporation, and requiring the affidavit to state the name of any of the officers or directors whose testimony is necessary and material, or the books and papers as to the contents of which an examination or inspection is desired, the books and papers are to be used merely as an incident to, and in connection with, the oral testimony of the witness who is to testify therefrom, and their production is not for the purpose of allowing an inspection and examination of them by the adverse party, to secure which it is necessary to proceed under Code Civ. Proc. $S 803-809, relative to discovery.
2. DEPOSITIONS APPLICATION-MATERIALITY OF TESTIMONY-SUFFICIENCY OF
To entitle an applicant to the examination of the president of a corporation under Code Civ. Proc. $ 872, subd. 7, providing that, where the party sought to be examined is a corporation, the affidavit shall state the name of the officers or directors whose testimony is "necessary and material," it should be shown that the examination of such president is necessary and material; and this is not done where it appears that the president was not connected with the corporation, and hence could have had no personal knowledge of the transactions involved, at the time of their occurrence. Appeal from Special Term, New York County.
In the matter of the application of James A. Thompson, as ancillary executor, etc., of William Thompson, deceased, for an order of examination of the New York Pie Baking Company. From an order refusing to vacate the order for an examination, the pie baking company appeals. Reversed.
Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and LAUGHLIN, JJ.
John B. Coleman, for appellant.
O'BRIEN, J. The real object of the examination is to obtain an inspection of the books of the company, although, in form, the application is to examine its president. We say "in form,” because the examination of the president is a mere incident to what is really sought, namely, an inspection of the books. This is reversing the order of things, and such practice is not sanctioned by any of the provisions of the Code of Civil Procedure. Section 872, subd. 7, which relates to the examination and inspection of books of a corporation, is authority only for their production in connection with the examination of a witness who is able to testify from them. A proceeding for the discovery of papers under sections 803–809 is entirely distinct. Where it is shown that an examination of a witness is "material and necessary,' and that, in order that he may supplement his knowledge, books are essential, it is competent to require him, on the examination, to have the books, for the purpose of furnishing such data or information as he may not be able personally to supply. The books are thus used merely as an incident to, and in connection with, the oral examination of the witness, who can testify from them, and their production under such circumstances is not for the purpose of allowing an inspection and examination of them by the adverse party. In Press Publishing Co. v. Star Co., 33 App. Div. 243, 53 N. Y. Supp. 371, it was said:
"Its object is that if a reference to the books becomes necessary during the examination, either to corroborate or contradict a witness, or to make the proof preliminary to the introduction of the books in evidence upon the trial, such proof may be made, and the books may be referred to for that purpose.”
Similarly, in Mauthey v. Wyoming Co. Fire Ins. Co., 76 App. Div. 581, 78 N. Y. Supp. 596, it was said:
“When the party sought to be examined is a corporation, its books and papers may be directed to be produced, as subsidiary to the oral examination. This does not, however, permit an inspection or examination of the books and papers
and 123 New York State Reporter of the defendant, as is permissible under the other procedure referred to.
The primary purpose of the examination is the oral examination. In order, however, that it may not be rendered fruitless,
the books are required to be produced as an adjunct of the oral examination." To entitle the applicant to the examination of the company's president, therefore, he should make it appear that the examination of the person sought to be examined is material and necessary. Leary v. Rice, 15 App. Div. 397, 44 N. Y. Supp. 82. It does not so appear, but, on the contrary, it is shown that the person sought to be examined was not, at the time when the transactions involved in the suit are alleged to have occurred, connected with the company; and he could not, therefore, have any personal knowledge of such transactions. The question thus resolves itself into whether a plaintiff who states that he intends to begin an action, and serve a summons, can, by moving for the examination of a defendant's president, who knows nothing of the facts involved, under the guise of such an examination, obtain an inspection of the defendant's books. As pointed out, sections 870–873 of the Code of Civil Procedure provide for the examination of a party "whose testimony is material and necessary," and for compelling him to bring the books which may be required in connection with his oral examination to make it complete; and, if what is sought is only an inspection of the books, the applicant should move, and bring himself within sections 803–809 of the Code. The applicant therefore proceeded under the wrong section of the Code of Civil Procedure, and the motion to vacate the order for the examination should have been granted.
The order appealed from is accordingly reversed, with $10 costs and disbursements, and the motion to vacate the order for the examination of the company's president granted, with $10 costs. All concur.
(95 App. Div. 552.)
In re MAYOR, ETC., OF NEW YORK.
In re RIVERSIDE PARK.
(Supreme Court, Appellate Division, First Department. June 29, 1904.) 1. CONSTITUTIONAL LAW-DUE PROCESS OF LAW-ASSESSMENT PROCEEDINGS
NECESSITY OF NOTICE.
A law imposing an assessment, which makes no provision for a notice and an opportunity for a hearing by the owners of property to be assessed, is unconstitutional, as depriving such owners of their property
without due process of law. 2. PARKS-EMINENT DOMAIN-STATUTES-CONSTRUCTION-INCORPORATION OF
Laws 1896, p. 887, c. 727, relative to an addition to a certain park, provided in section 2 thereof that the provisions of law relating to the “taking of private" property for “public streets and places” should be applicable, so far as the same should be necessary for the "acquiring of said land.” The commissioners provided for by the act were designated "commissioners of estimate and assessment," and they were directed to "assess" certain proportions of the award on the parties benefited. The consolidation act, which was in force when the act of 1896 was passed, contained a complete method of procedure for street and park openings.
11. See Constitutional Law, vol. 10, Cent. Dig. $ 872.
Held that, as the "taking of private property" and "acquiring of land" requires not only the vesting of title, but payment for the property, which, with respect to "public streets and places," means levying of assessments, the language of section 2 made applicable to proceedings under the act the provisions of law relating to assessments as well as those relating to
the vesting of title. 3. SAME_CONSTITUTIONALITY.
Laws 1896, p. 887, c. 727, $ 2, providing that the provisions of law relating to the taking of private property for public streets and places in a certain city are made applicable, so far as necessary for the acquiring of certain land, as it merely refers to local statutes to indicate the procedure necessary in taking property, is not repugnant to Const. art. 3, $ 17, providing that no act shall enact that any existing law or part
thereof shall be applicable except by inserting it in such act. 4. SAME-CONSTRUCTION-CLERICAL ERRORS.
Laws 1896, p. 888, c. 727, § 4, provides that the costs and expenses of the proceeding for acquiring title to lands taken under the act "shall be borne and paid three-fourths thereof by the mayor
and the remaining fourth by the parties * * benefited by such improvement,” and that the commissioners shall assess to the extent of "one-third of the amount of such award * * upon all such parties *
as they may be deemed to be benefited." Held, that the use of the word “third" in the latter part of the section was obviously an inadvertence, and that
the word should be read "fourth." 5. SAME-PUBLIC IMPROVEMENTS-ASSESSMENT OF BENEFITS-ITEMS OF AWARD
Since the law applicable to the acquisition of title to property for streets and public places in the city of New York provides for the passing of title at the beginning of the proceedings, and before the commissioners have had an opportunity to make the assessment, and as the person damaged is entitled to interest on the value of the property taken from the vesting of the title in the city, as a cost of the proceeding, and not because of any delay of the city in making the award, the provision of Laws 1896, p. 888, c. 727, § 4, providing that the commissioners, in acquiring property for a certain park, shall assess a proportionate amount of the award, "interest,” costs, and expenses on parties benefited, is not objectionable, and interest should be included in the assessment.
McLaughlin and Ingrabam, JJ., dissenting. Appeal from Special Term, New York County.
In the matter of the application of the mayor, etc., of the city of New York to acquire title to real estate for Riverside Park. From an order refusing to confirm the report of the commissioners of estimate and assessment, the city appeals. Reversed, and report modified.
See 70 N. Y. Supp. 1144.
Argued before VAN BRUNT, P. J., and MCLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.
John P. Dunn, for appellant City of New York.
O'BRIEN, J. By virtue of chapter 727, p. 887, Laws 1896, entitled "An act to provide for an addition to Riverside Park in the city of New York,” the park commissioners adopted a resolution on July 27, 1896, requesting the corporation counsel to initiate this proceeding, and, as the result, "Commissioners of Estimate and Assess