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and 123 New York State Reporter Storms v. Manhattan R. Co....

....79 N. Y. Supp. 60 Judgment affirmed. 71 N. E. 3. Streets v. Grand Trunk R. Co....

.78 N. Y. Supp. 729 Judgment afirmed. 70 N. E. 1109, 178 N. Y. 553. Stromberg v. Tribune Ass'n...

....85 N. Y. Supp. 259 Judgment affirmed. 70 N. E. 1110, 178 N. Y. 610. Strowger v. American Bonding & Trust Co.

...80 N. Y. Supp. 1149 Judgment afirmed. 70 N. E. 1110, 178 N. Y. 553. Studeman v. Becker

..85 N. Y. Supp. 1148 Appeal dismissed. 70 N. E. 1110, 178 N. Y. 614.

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Judgment affirmed. 70 N. E. 1110, 178 N. Y. 578. Universal Trust Co. v. Lent.....

Judgment affirmed. 70 N. E. 1111, 178 N. Y. 556.

.81 N. Y. Supp. 1145

Walsh v. New York & Q. C. R. Co...

....80 N. Y. Supp. 767 Judgment affirmed. 70 N. E. 1111, 178 N. Y. 588. Warner v. House

.85 N. Y. Supp. 1150 Appeal dismissed. 70 N. E. 1111, 178 N. Y. 604. Warth V. Liebovitz

.82 N. Y. Supp.

578 Judgment affirmed. 71 N. E. 734, 179 N. Y. 200. Weaver v. Weaver

.77 N. Y. Supp.

568 Judgment affirmed. 70 N. E. 1111, 178 N. Y. 621. Westerfield v. Rogers

.71 N. Y. Supp. 401 Judgment affirmed. 70 N. E. 1111, 178 N. Y. 569. Wheeler Condenser & Engineering Co. v. R. G. Packard Co.

......82 N. Y. Supp. 165 Judgment affirmed. 70 N. E. 1111, 178 N. Y, 571.

.82 N. Y. Supp. 908

Woodward v. Mutual Reserve Life Ins. Co...

Judgment reversed. 71 N. E. 10, 178 N. Y. 485.

Yorkville Bank v. Henry Ze Brewing Co............80 N. Y. Supp. 839

Appeal dismissed. 70 N. E. uu, 178 N. Y. 572.

See End of Index for Tables of New York Supplement Cases in Other Reports.

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THE

New York Supplement

VOLUME 89

AND

New York State Reporter,

VOLUME 123.

(96 App. Div. 91.)

ROCKEFELLER V. LAMORA. (Supreme Court, Appellate Division, Third Department. June 30, 1904.) 1. FISH AND GAME-PRIVATE PARKS-STOCKING WITH FISH-EFFECT.

Under Laws 1900, c. 20, $ 200, providing that waters stocked with fish by the state shall not be laid out in any private park, and that, if waters in any such park are stocked by the state with the consent of the owner, the provisions of the statute providing for the laying out of a private park shall not apply thereto, the stocking of private waters with fish results in a charge on the land, which runs with the land, and not with the person of the owner, and which is fixed at the time that the consent is given and the waters are stocked in pursuance thereto, so that it cannot be extended to other lands and waters by reason of the fact that the grantee of the waters stocked with fish by the state and of the other

lands and waters is one and the same person. 2. CORPORATIONS-PRESIDENT-POWERS-MODE OF DELEGATION.

The president of a corporation has not power ex officio to bind the corporation or control its property, but his 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 im

plied from a habit or custom of doing business. 3. SAME.

A corporation was created, as shown in its certificate, for the purpose of carrying on the manufacture of lumber and other products of the forests. Its by-laws provided that the notes and other obligations of the company should be signed by the president, who should also sign and execute contracts, deeds, or other written instruments relating to the conveyance of any real estate belonging to the company, and should make all contracts for the corporation relating to the manufacture and sale of lumber, and to business carried on by the company, including sales of its real estate. Held, that an oral assent by the president of the com

89 N.Y.S.—1

and 123 New York State Reporter pany to the stocking of certain waters flowing through its property with trout was merely a personal consent, and was not, and could not be, bind. ing on the corporation. Appeal from Trial Term, Franklin County.

Action by William Rockefeller against Oliver Lamora. From a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals. Reversed.

Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Kellas & Genaway (John P. Kellas, of counsel), for appellant.

Saunders & Saunders (Rollin B. Sanford, of counsel), for respondent.

*

CHASE, J. On an appeal from a former judgment in favor of the defendant, the judgment was reversed, and this court rante a new trial in the County Court. On the new trial the case was submitted to a jury, and a verdict was rendered in favor of the defendant, upon which judgment was entered, and from which judgment this appeal is taken.

It is unnecessary on this appeal to consider the questions discussed in the opinion on the former appeal. Rockefeller v. Lamora, 85 App. Div. 254, 83 N. Y. Supp. 289. This court then said:

"The Legislature could not authorize the State Fish Commissioners to enter upon a man's private fishery without his knowledge and consent, and deposit therein fish hatched by the state, and thus convert his property to public use and destroy his private rights. This would be the taking of private property for public use without just compensation.

The owner of a stream could doubtless dedicate it to the public use, as he could his lands to a public highway; but this imports consent on his part, and a bargain entered into between him and the public authorities.

Our interpretation of the statute is that the stocking of streams and waters, the beds and adjacent lands of which are owned by an individual or corporation, in order to give the right to the public to fish therein, must be with the consent of the owner or one having a right of fishery therein, and that only the particular stream, lake, or pond thus stocked is so made public, and that such stocking does not open to the public streams to which they may be tributary, and that this stocking of such a stream by the state and the owners above or below does not have the effect of opening to the public that part of the stream situated on lands of an owner who has not consented to such dedication, and that the public is not permitted to follow the migrations of the fish, and take them in that part of the stream on private lands without the owners' consent.”

There is no dispute about the plaintiff's ownership and possession of the land and water upon which the defendant trespassed, nor that the plaintiff had complied with the provisions of the statute (article 11 of the forest, fish, and game law; chapter 20, p. 58, Laws 1900) for the purpose of establishing his lands and waters as a private park, nor that the defendant on three different occasions in the months of April and May, 1902, went across the plaintiff's lands included in his said private park, and fished in a stream thereon, and took fish therefrom, after he was expressly forbidden to so enter and fish thereon. The defendant's contention is that the plaintiff is not entitled to the benefit of said statute authorizing the laying out of his lands and waters as a private park, and

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