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be granted or the judgment thereon be reversed or vacated. On the trial of such issue the decree of the surrogate admitting the will or codicil to probate shall be prima facie evidence of the due attestation, execution and validity of such will or codicil. A certified copy of the testimony of such of the witnesses examined upon the probate, as are out of the jurisdiction of the court, dead, or have become. incompetent since the probate, shall be admitted in evidence on the trial. The party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the will in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence and rebutting testimony may be offered as in other cases. If all the defendants make default in pleading, or if the answers served in said action raise no issues, then the plaintiff may enter judgment as provided in article two of chapter eleven of the code of civil procedure in the case of similar defaults in other actions. If the judgment to be entered in an action brought under this section is that the writing produced is the last will and codicil, or either of the testator, said judgment shall also provide that all parties to said action, and all persons claiming under them subsequently to the commencement of the said action, be enjoined from bringing or maintaining any action or proceeding, or from interposing or maintaining a defense in any action or proceeding based upon a claim that such writing is not the last will or codicil, or either, of the testator. Any judgment here tofore entered under this section determining that the writing produced is the last will and codicil, or either, of the testator, shall, upon application of any party to said action, or any person claiming through or under them, and upon notice to such persons as the court at special term shall direct, be amended by such court so as to enjoin all parties to said action, and all persons claiming under the parties to said action subsequently to the commencement thereof, from bringing or maintaining any action or proceeding impeaching the validity of the probate of the said will and codicil, or either of them, or based upon a claim that such writing is not the last will and codicil, or either, of the testator, and from setting up or maintaining such impeachment or claim by way of answer in any action or proceeding. When final judgment shall have been entered in such action, a copy thereof shall be certified and transmitted to the clerk of the surrogate's court in which such will was admitted to probate. The action brought as herein provided shall be commenced within two years after the will or codicil has been admitted

to probate, but persons within the age of minority, of unsound mind, imprisoned, or absent from the state, may bring such action two years after such disability has been removed.

§ 2. This act shall take effect immediately.

Chap. 704.

AN ACT providing for the surveying and mapping of certain
oyster lands under waters of Long Island sound.

Became a law May 22, 1897, with the approval of the Governor
Passed, three-fifths being present.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Section 1. The state engineer and surveyor is hereby authorized Survey and map of and directed to cause a survey and map of newly discovered beds bed, of oysters of natural growth under the water of Long Island sound, located between Mount Sinai and Orient point on Long Island, and shall also cause to be erected substantial monuments and signals for the purpose of accurately locating same. Said surveying, mapping and erection of monuments and signals shall be done according to the general direction of the state shell fish commissioner. The sum of five thousand dollars is hereby appropriated Appropri for carrying out the provisions of this act, to be paid out of any funds in the treasury not otherwise appropriated. 32. This act shall take effect immediately.

ation.

Chap. 706.

AN ACT to amend the game law and the act amendatory thereof,
relative to regulations for dredging and raking for oysters and
clams.

Became a law May 22, 1897, with the approval of the Governor.
Passed, three-fifths being present.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Section 1. Section one hundred and ninety-one of chapter four hundred and eighty-eight of the laws of eighteen hundred and ninety-two, the title to which was amended by chapter three hundred and ninety-five of the laws of eighteen hundred and ninetyVol I 99

Erection of building.

five to read "An act relating to game, fish and wild animals and to the forest preserve and Adirondack park, constituting chapter thirty-one of the general laws and to be known as the fisheries, game and forest law," as amended by chapter nine hundred and seventy-four of the laws of eighteen hundred and ninety-ǹve is hereby amended so as to read as follows:

§ 191. Dredging and raking for oysters and clams regulated.No dredge, operated by steam power, or weighing over fifty pounds, shall be used on beds of natural growth in dredging for shellfish. No rake, tongs, dredge or other device shall be used for taking hard or round clams, with spaces or openings, between the teeth or prongs of less than one inch in width. Whoever violates or attempts to violate the provisions of this section shall be guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of one hundred dollars for each violation thereof. § 2. This act shall take effect immediately.

Chap. 707.

AN ACT providing for an addition to the New York State School
for the Blind, and making an appropriation therefor.

Became a law May 22, 1897, with the approval of the Governor.
Passed, three-fifths being present.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Section 1. A building to be used as a boys' industrial depart ment, including piano tuning, shall be erected at the New York State School for the Blind at Batavia, by the board of managers of said institution, pursuant to plans and specifications to be furnished by the state architect and approved by the state board of charities, and the work of construction to be performed under the supervision of the state board of charities, at a cost not exceeding eight thousand dollars for the completion of said building and Appropri- fifteen hundred dollars for heating and plumbing, the sum of two thousand five hundred dollars appropriated by chapter nine hundred and fifty of the laws of eighteen hundred and ninety-six for refitting building for school work-shops is hereby reappropriated towards the construction of said building, and the sum of seven thousand dollars is hereby appropriated therefor from any moneys in the treasury not otherwise appropriated.

ation.

of appro priation.

§ 2. The moneys appropriated by section one of this act shall Payment be paid upon the warrants of the comptroller drawn upon the treasurer from time to time as required by said board of trustees for the payment of sums due in the progress of said work, the accounts for which shall be verified by the officers of said board of trustees and approved and indorsed by an authorized member of the state board of charities. No contract made under this act shall take Contracts. effect until approved by said state board of charities, and certified copies thereof shall be filed with the comptroller before payments thereon.

§ 3. This act shall take effect immediately.

Chap. 725.

AN ACT conferring jurisdiction upon the court of claims to
hear, audit and determine the claim of Charles W. Little against
the state of New York.

Became a law May 22, 1897, with the approval of the Governor.
Passed, three-fifths being present.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

tion to hear claim.

Section 1. Jurisdiction is hereby conferred upon the court of Jurisdicclaims to hear, audit and determine the alleged claim of Charles W. Little, doing business at Albany, New York, under the firm name of W. C. Little and Company, against the state of New York for damages claimed to have been sustained by said Little through an alleged breach on the part of the state, of a contract made in its behalf on the sixteenth day of December, eighteen hundred and ninety-five, by state officers, with said Little, for printing and delivering the slips of the session laws for the legislative session of eighteen hundred and ninety-six, as ordered by the secretary of state, and printing, publishing and delivering to the secretary of state twenty-five hundred copies of the laws of eighteen hundred and ninety-six, and furnishing the edition to the public as required by the terms of said contract.

Determination and award of

§ 2. If the facts proved before said court shall establish a legal or valid claim against the state for the damages alleged to have damages. been sustained by said Little as aforesaid, the said court shall determine the amount of said damages and award such sum therefor

Appeal from award.

as may be just and equitable, not to exceed the sum of ten thou sand dollars.

§ 3. Either party may take an appeal to the appellate division of the supreme court in the third department from any award made under authority of this act, or from any judgment of affirmance or reversal thereof in the appellate division to the court of appeals, provided such appeal be taken by service of a notice of appeal within thirty days after service of a copy of the award or of the judgment of the appellate division.

§ 4. This act shall take effect immediately.

Chap. 726.

AN ACT to amend section fifteen hundred and thirty-eight of the
code of civil procedure, relating to actions for partition.
Became a law May 22, 1897, with the approval of the Governor.
Passed, a majority being present.

The People of the State of New York, represented in Senate and
Assembly, do enact as follows:

Section 1. Section fifteen hundred and thirty-eight of the code of civil procedure is hereby amended so as to read as follows:

§ 1538. Who must be parties.-Every person having an undivided share, in possession, or otherwise, in the property, as tenant in fee, for life, by the curtesy, or for years; every person entitled to the reversion, remainder or inheritance of an undivided share, after the determination of a particular estate therein; every person who, by any contingency contained in a devise or grant, or otherwise, is or may become entitled to a beneficial interest in an undivided share thereof; every person having an inchoate right of dower in an undivided share in the property; and every person having a right of dower in the property, or any part thereof, which has not been admeasured, must be made a party to an action for a partition. But no person, other than a joint tenant, or a tenant in common of the property, shall be a plaintiff in the action. Whenever an action for the partition of real property shall be brought before the expiration of three years from the time when letters of administration or letters testamentary, as the case may be, shall have been issued upon the estate of the decedent from whom the plaintiff's title is derived, the executors, or administrators, as the case may be, if any.

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