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Statement of the Case.

THE ATLANTIC DOCK COMPANY, RESPONDENT, v. THE CITY OF BROOKLYN, APPELLANT.

New York County, Boundary-Riot Act-Laws 1855.

The boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side of East River.

APPEAL from the Supreme Court. The action was for the recovery, under the Riot Act of 1855, of the damages sustained by the Plaintiffs, through injuries to their property by a mob, on the 15th of July, 1863. The complaint alleged the facts on which the claim was based, and the answer consisted of a mere denial of the allegations.

The cause was tried at the Kings Circuit, on the 15th of June, 1864, before Mr. Justice Lott and a jury, and it resulted in a verdict in favor of the Plaintiffs for $17,450.66.

It appeared on the trial that the pier injured by the mob was erected on piles in the basin, below the original line of low-water mark, on the Brooklyn shore of the East River, and that its foundations were penetrated by the tides. The dredging-machine, which was destroyed by the rioters, was floating within the Atlantic basin, and below the original low-water line.

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It also appeared that on the 25th of September, 1845, the Plaintiffs filed a map of this basin and the adjoining property, in the office of the Register of Kings county. It was entitled a map property in the Sixth Ward of the city of Brooklyn, belonging to the Atlantic Dock Company. It exhibited only the side bulkheads, the pier not having yet been built.

The Defendants thereupon moved for a dismissal of the complaint, on the grounds:

1. That the property injured and destroyed was not within the bounds either of the city of Brooklyn or of the county of Kings.

Opinion by PORTER, J.

2. That the statute on which the action was based is unconstitutional; that the remedy it provides is uncertain; and that the action, if any, should have been against the county.

The motion was denied, and the Defendants excepted.

The Defendants then requested the Court to instruct the jury that the pier in question was within lands dedicated by the Plaintiffs to the use of the public, and that there could be no recovery in the action for damage thereto. The Judge refused, and the Defendants excepted.

These were the only exceptions taken on the trial. The judgment rendered on the verdict was affirmed on appeal at a General Term in the Second District, and the Defendants appealed to this Court.

Alexander McCue for Appellants.

Nathan Burchard for Respondents.

PORTER, J.-The statute under which the action was brought is free from constitutional objection (Darlington v. Mayor of New York, 31 New York, 164). The pier injured by the rioters was within the limits of the city of Brooklyn. It has been repeatedly adjudged that the boundary of territorial jurisdiction between the counties of New York and Kings is the actual line of low water on the Brooklyn side, whether corresponding with the original low-water line on the East River shore, or varied by the permanent encroachment of docks, piers, and wharves, or other artificial erections for the purposes of general commerce (Stryker v. Mayor of New York, 19 Johnson, 179; In the Matter of Furman Street, 17 Wendell, 649, 660; Luke v. City of Brooklyn, 43 Barbour, 54; S. C. affirmed in the Court of Appeals, June Term, 1865). The motion to dismiss the complaint was, therefore, properly denied; a cause of action was established by the proof, and a nonsuit would have been plainly erroneous.

It is suggested that damages should not have been included in the verdict for the destruction of the dredging-machine, on the ground that it was afloat on the waters of the Atlantic basin, and without the bounds of the city of Brooklyn. That question is not

Opinion by PORTER, J.

before us for consideration. Our province is simply to determine whether any erroneous ruling was made in the court below, and not to retry the original issue. The Defendants requested no instruction to the jury on this subject, and they cannot complain of the Judge for omitting to pass upon a question of the law which was not submitted to him for decision.

The Court properly refused to charge that the pier had been dedicated by the Plaintiffs to the use of the public. Such an instruction would have been wholly unwarranted by the evidence.

The judgment should be affirmed, with costs.
All the Judges concurring, judgment accordingly.

JOEL TIFFANY,

State Reporter.

Statement of the Case.

JAMES H. SEGUINE, APPELLANT, v. HENRY L. SEGUINE AND OTHERS, RESPONDENTS.

Will—Testator—Capacity— Undue Influence.

Under our law a testator, having testamentary capacity, and being free from improper influence, can make what disposition of his property he please. If capacity, formal execution, and volition concur, the will, however absurd or unjust, must stand.

Undue influence, in such a sense as to avoid a will, must be an influence exercised by coercion, imposition, or fraud, and not such as arises from the influence of gratitude, affection, or esteem. It must be the ascendency of another will over that of the will of the testator.

APPEAL from a judgment of the Supreme Court, affirming a decree of the Surrogate of the County of Richmond, admitting to probate the will of James S. Seguine, deceased.

The will in question was executed on the 22d May, 1859, at Rossville, in the county of Richmond, at the house of the testator's brother, Henry L. Seguine. The testator died at his residence at Deep Creek, in the State of Virginia, on the 11th of January, 1860, leaving an only son, James Henry Seguine.

The executors named in the will, on the 20th January, 1860, propounded the same for probate before the Surrogate of Richmond County; and it was opposed by the testator's son, on the ground of a want of testamentary capacity in the deceased, and further, that it was procured by undue influence. The question of capacity was principally litigated; the contestant claiming that, through intemperance and disease, the deceased was incompetent to make a will, or if not legally incompetent, was imbecile, and in that condition was unduly influenced. The testimony taken before the Surrogate fills a volume of 600 pages, most of it on the part of the contestant, relating to the condition and habits of the testator, and of matters transpiring in the summer and fall of 1859, at Rossville, after the making of the will. It is impracticable to give anything like a precise analysis of the voluminous

Opinion by WRIGHT, J.

testimony, nor is it important. The prominent and material facts are referred to in the opinion.

On the 15th October, 1864, the Surrogate made a decree admitting the will to probate. The contestant appealed to the Supreme Court, in the Second District, where the decree was affirmed, and he now brings an appeal to this Court.

A. W. Bradford for Appellant.

A. C. Bradley and S. Hunt for Respondents.

WRIGHT, J.-James S. Seguine, the validity of whose will is the subject of this appeal, died at his residence, at Deep Creek, in the State of Virginia, on the 11th of January, 1860, at the age of about fifty-five years. He was born in the county of Richmond (Staten Island), his family being an ancient one in the county, but from early life had resided and was engaged in business in Virginia. His business was mainly lumbering in the Dismal and other Southern swamps; but in connection therewith. he built and owned shares in several vessels employed in the transportation of his lumber and other freight. This business was continued until his death.

He left an only son, the Appellant, who was a few months old at the death of his mother, in 1838. His other near relatives were a sister, the widow of a Mr. Guyon, and a brother, Henry L. Seguine.

The brother and sister always resided on Staten Island, as did the son, who was reared in the family of the sister-the deceased, after the death of his wife, never marrying again, or keeping a domestic establishment. He had lodgings in Virginia, where he spent most of his time, visiting the North in the summer season; and on such occasions, and when north on business, made his brother's house, on the island, his home.

The deceased had accumulated an estate, at his decease, of probably something over $100,000. With the exception of a farm on the island, formerly belonging to his father, purchased by him in 1858, and fitted up and improved at a cost of some $15,000, as a home for his son, his property was principally personal, con-

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