Second Department, October, 1911.

[Vol. 146. soil covered by water, as are embraced within the projected boundary lines of any street intersecting the shore line, and which street is in public use, or which may be hereafter opened for public use, extending from high-water mark out into said streams, rivers, sounds, bays and waters so far (any limits in existing grants to the contrary) as the said city shall now or at any time hereafter in the opinion of its board of aldermen or department of docks and ferries require the same for ferries, public wharves, docks, piers, bulkheads, basins, slips, or other public structures, adjuncts and facilities for navigation and commerce." This section further provides as follows: "The Commissioners of the Land Office shall from time to time, convey or patent the lands herein granted to the city for said purposes as and whenever required by the board of docks." Whether this section of the charter be considered as a completed grant, it certainly amounts to a permanent appropriation to the uses of the city of New York of all the lands under water described therein, and it was no longer within the power of the Commissioners of the Land Office to make any grants in fee or otherwise, inconsistent with the provisions of said section.

It is argued, however, that the section of the statute above quoted did not apply to Joralemon street, as that is said not to have intersected the shore line, nor to have extended from high-water mark, and that, therefore, its lines could not be "projected" out into the waters of the East river, in the meaning of the statute. This argument is of supreme importance, because the route of the subway as constructed lies largely within limits, between piers 17 and 18, which would form extensions of boundary lines of Joralemon street from the shore line out into the river. The argument is based upon a further contention that Joralemon street actually ends above high-water mark, or the shore line, and that the dock company owns two parcels of land intercepting its further progress to high-water mark. It is then argued that the lines of the street cannot be considered as "projected" into the water of the river, because such lines would pass through private property in order to reach high-water mark. This interpretation of the statute seems too narrow. The statute applies by its express terms to

App. Div.]

Second Department, October, 1911.

any street intersecting the shore line, and which street is in public use or which may be hereafter opened for public use." The "projected boundary lines" described by the statute would, therefore, embrace the boundary lines of a street then laid out as intersecting the "shore line," although a portion of it had not been actually opened for public use, for, as it declares expressly, it has relation to such a street "which may be hereafter opened for public use." In any event, the commissioners found as a matter of fact that Joralemon street had been opened out to the bulkhead line established by law, and that the fee of the dock company in that street was subject to street uses out to said bulkhead line. If so, then section 83 of the charter of the city of New York applied as the city became vested with a fee to the lands under water within the projected lines of that street out into the East river between piers 17 and 18. It was inconsistent, therefore, on the part of the commissioners to find that the dock company had title in fee to all lands beyond the bulkhead line, and to base its award of damages on such a theory.

It is suggested that the construction of the subway was not such a purpose as would fall within the main purpose of whatever grant had been made to the city of New York by section 83 of its charter, as aforesaid, which grant is declared to be made for the general purpose of "navigation, intercourse and commerce." The subway is devoted to the carriage of passengers between the boroughs of the city. The word "commerce" has been held to embrace the carriage of passengers for hire. "That the transportation of passengers is a part of commerce is not now an open question." (Passenger Cases, 7 How. [U. S.] 401; Gibbons v. Ogden, 9 Wheat. [U. S.] 1.) If, however, the construction of the subway can be held to be not within the purposes of the grant made by section 83 of the charter, that objection is to be availed of only by the State, and is not open to the dock company, for the Commissioners of the Land Office had no power to grant to it in fee what had already been granted to the city of New York in fee. The grant made in 1902 to the dock company must, therefore, be deemed to have excluded such lands under water in the slip between piers Nos. 17 and 18 as were included within the pro

jected lines of Joralemon street from the bulkhead line outward. The city, however, could not use these lands for any purpose in such manner as to impair or damage the rights of the dock company as pier owners, or as grantees under the grant of 1902 so far as it elsewhere applies, and where such impairment and damage is shown compensation must be made, but it must be based upon a proper legal theory. These views lead to a reversal of the order confirming the report of the commissioners. There is, however, no necessity of appointing new commissioners, in view of the great expenditure of time and money already had, and the matter should be referred back to the same commissioners for re-examination and a new report, with the suggestion that whatever awards may be made hereafter for temporary and permanent damages be stated separately.

JENKS, P. J., HIRSCHBERG, BURR and THOMAS, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to the commissioners, in accordance with opinion. Order to be settled before Mr. Justice CARR.

In the Matter of the Probate of the Last Will and Testament of ROBERT H. THOMPSON, Deceased.

J. LINTON THOMPSON and Others, Appellants; MABELLE AMES THOMPSON, Respondent.

Second Department, October 27, 1911.

Will - undue influence

belief in spiritualism —jury trial-failure to provide for wife.

A will should not be refused probate because the testator at about the time it was executed was interested in spiritualism and attempted, through an adopted daughter, to communicate with the spirit of his first wife, who had died about a year before, and had the communications received written down in a book, where it appears that the plan of the will had been formulated sometime before the alleged communica

App. Div.]

Second Department, October, 1911.

tions; that when the will was executed the testator was of sound and disposing mind and memory; that he did not regard the spiritualistic communications, which had nothing to do with the disposition of his property, as of divine origin, and where it is conceded that the will expressed his wishes at the time it was executed.

Such will should not be refused probate at the suit of a wife whom the testator married two years after its execution and but four months before his death on the ground that it contained no provision for her. Evidence examined, and held, that a decree denying probate on the ground that there was a conspiracy between the adopted children of the deceased and that their acts were fraudulent and constituted undue influence should be reversed and the issues tried by a jury.

APPEAL by J. Linton Thompson and others, the executors and residuary legatees named in the will, from a decree of the Surrogate's Court of the county of Kings, entered in said Surrogate's Court on the 26th day of January, 1911, denying probate to an instrument purporting to be the last will and testament of Robert H. Thompson, deceased.

John J. Crawford and Charles F. Brown, for the appellants.

Jesse Fuller, Jr., for the respondent.

RICH, J.:

This is an appeal from a decision of the surrogate of Kings county denying probate to an instrument offered as the last will and testament of Robert H. Thompson, deceased. The appellants are the son and two grandchildren and adopted children of the deceased. On February 14, 1910, the deceased married the respondent, who had for several years been in the employ of a corporation of which he was the president. A former wife of the deceased died sometime prior to the 19th day of June, 1908, the time when the instrument offered for probate was executed. It appears that the deceased was interested in spiritualism, and about a year after his wife's death commenced to urge his adopted daughter to see if she could not get in communication with the spirit of his deceased wife. She testifies that at the repeated solicitation of her grandfather she would put her mind in a passive state, the deceased would ask questions of his deceased wife, and if the daughter had an impression indicating to her mind an answer to such questions she

Second Department, October, 1911.

[Vǝl. 146. would write it out and give it to him. Quite a number of these writings the deceased caused to be copied in a book, and they, with others, were introduced in evidence upon the hearing. The learned surrogate has found, and the finding is predicated upon these writings, that there was a conspiracy between the adopted children of the deceased, and that their acts were fraudulent and constituted undue influence; that the instrument offered for probate was the product of such conspiracy, fraud and undue influence, and was void. It is clearly established that the deceased had formulated his plans for the disposition of his estate some time before the alleged communications, and had executed the will in question. It is not contended that he was not of sound and disposing mind and memory when his will was executed; upon the contrary, it is stipulated that he "retained his faculties for business, and that these faculties were good" up to and beyond the time he executed his will, and the learned surrogate announced near the close of the testimony: "I shall find that the decedent was in the maturity of his powers as a good, strong business man, and in the absence of any proof to the contrary I shall find that he maintained those powers which he had as to the ordinary affairs of life." I am unable to find anything in the evidence warranting the conclusion that the communications to the deceased had any influence upon the testator in making his will. He does not seem to have regarded such communications as of a divine origin, because in many cases where the language did not please him he changed it to conform to his views before having it copied. There is no reference in any of the communications to the respondent, and there are but two expressions that can by the wildest stretch of imagination be said to furnish any basis for her contention. One is that the testator should not marry again. Concededly he was not influenced by this, because he did marry. And the other is that, if he was going to marry, he should provide for the children first. There is no evidence that deceased contemplated marriage when the will was executed. It is not intimated that the will does not express the true intent of the testator towards his children and blood relatives at the time it was executed, or that they were not then the natural and exclusive objects of his affection and