Hughes agt. Hughes. of real estate while the life tenant is still living, without his assent. On principle it would seem clear that the tenant for life of the whole could not be deprived of his positive rights and another status, that is, a gross sum, substituted without his assent. But without considering the question on principle, it seems to me the question has been fully disposed of by the court of last resort. Blakely agt. Calden (15 N. Y., 617) has been cited and relied on by the plaintiff. In that case all parties, including the life tenant, had united in the partition suit and the decree, and asked its enforcement, and the party objecting was the purchaser. Whether as matter of principle that should make a change, is not necessary to discuss. The court there held it did, and put its decision on such assent, and the result was merely to hold that the purchaser could not raise the question. In Howell agt. Mills (56 N. Y., 225), cited by plaintiff, the court puts its decision solely on the ground that no exception brought up the question, and there was nothing before it but the question of jurisdiction, and as the supreme court had iurisdiction, the court of appeals had no means of ascertaining whether error had been committed in the decision. No exception brought up any erroneous ruling. In Sullivan agt. Sullivan (66 N. Y., 37), it seems to me the very question raised is disposed of. The court say, that "we think it too well settled by authority, as well as upon principle, that a remainderman cannot, as against others not seized of a like estate in common with him, maintain the action to disturb the rule. If the action should be extended and the benefit given to other parties it must be done by legislation.' And this brings us to the question whether legislation has changed the law on the subject. No suggestion is made anywhere that the amendment to the Code is intended to change the law. That radical change, if intended, would have been stated, and the intent made plain. The words of the section of the Code seem to me to intend simply to codify VOL. LXIII 52 Hughes agt. Hughes. what the law is, and not to change it. The plaintiffs' counsel admits in his brief that the court should, on request, order the premises sold, subject to the life estate, and subject to the life tenant's rights. Such a sale would be a gross injustice to the infant and those not consenting. No such sale could produce a fair and open competition for the lands, as no buyer would desire to purchase such an estate, and the effect would only be to declare the plaintiff's rights, which are already admitted. I do not feel disposed, without some clear law shows the intent to change, to hold that the rights of a life tenant can be thus interfered with, or be subjected to useless litigation, and must hold, until the higher courts change the rule, that the action will not lie. In the case of Morse agt. Morse, while the exact case is not before the court, the following language is used (85 N. Y., 57): "Unless he took, under the will, a present estate in possession in the premises in question, he cannot maintain this action." And for this the court cited Sullivan agt. Sullivan without disapproval, but as being the law. The case of Morse agt. Morse does not, as stated, raise the exact point in this case, but the court affirm the doctrine that, to entitle the remainderman to the remedy, there must be a present estate in possession. Here the estate in possession is with the tenant for life, and cannot be disturbed by one who is entitled to possession only on the death of the present possessor. Judgment for defendant. The People ex rel. Town of Knox agt. Supervisors of Albany Co. SUPREME COURT. THE PEOPLE ex rel. THE TOWN OF KNOX agt. THE BOARD OF SUPERVISORS OF ALBANY COUNTY AND THE TOWN OF BERNE. Supervisors - Their powers and duties as to disputed boundary lines between towns-Notice of intention to apply to board to fix line when defective — Board acts judicially — When prohibition lies to restrain proceedings of the board of supervisors. A notice of intention to apply to a board of supervisors to fix, establish, locate and define a disputed boundary line between two towns, which omits to describe particularly the line in dispute, is defective although the line proposed to be acted upon is fully stated, and such a notice confers no jurisdiction on the board. Said board acts judicially in such a case. Prohibition lies to restrain proceedings of the board of supervisors, judicial in their nature, under a notice which confers no jurisdiction. Special Term, Kingston, June, 1882. BERNE was one of the original towns of Albany county. By chapter 48 of the Laws of 1822, Berne was divided and Knox created therefrom, the dividing line being specifically described. About a year ago a dispute arose between said towns with reference to their division or boundary line. A notice was served and published of which the following is a copy: "Notice is hereby given that an application will be made to the board of supervisors of the county of Albany, at a session of said board appointed to be held at their rooms in the city of Albany on the 17th day of March, 1882, to fix, establish, locate and define the disputed boundary line between the towns of Knox and Berne, in said county, and the proposed boundary line is particularly described as follows, to wit: Beginning at a stake at the fence in the western boundary line of the county of Albany, standing three (3) chains twenty (20) links southerly from the center of the public highway (as now used and occupied) leading from The People ex rel. Town of Knox agt. Supervisors of Albany Co. the village of West Berne to Schoharie Court House. The above distance from said road to be measured on the Albany and Schoharie county line, and runs from said stake, according to the magnetic meridian of June, 1881, north eightyeight (88) degrees and fifteen (15) minutes, east six hundred and ninety-seven (697) chains thirty-seven (37) links to a stone monument standing in the western boundary line of the town of New Scotland, in said county of Albany, which said stone is eighteen (18) chains forty (40) links distant southerly from the center of the road known as the Indian Ladder road, which said distance from said road is to be measured on the New Scotland boundary line. NOTE. -The above described line, at about eighty-four (84) chains forty (40) links, strikes the cupola of a barn said to belong to Dewitt Schoonmaker, and at about six hundred and sixty-three (663) chains strikes a barn said to belong to John Hungerford, and being the same line as run by William H. Slingerland & Son. "Dated February 14, 1882. "FREDERICK W. CONGER, Supervisor of Town of Berne. "MADISON BALL, "Town Clerk of Town of Berne. "FRANK STREVELL, "Justice of the Peace of Town of Berne. "ELIAS YOUNG, "Justice of the Peace of Town of Berne.” At the time specified in said notice the board of supervisors met and the town of Knox appeared by counsel and objected to the form of the notice. A resolution fixing the boundary line as proposed in said notice was offered, and on objection made by the supervisor of Knox went over to the next day under a rule of the board. An adjournment was taken to the next day, when a further adjournment was had until the succeeding Thursday. It was the intention of said board to act The People ex rel. Town of Knox agt. Supervisors of Albany Co. upon said notice and pass said resolution. In the meantime, and on the 21st day of March, 1882, an alternative writ of prohibition was granted and duly issued returnable at the then ensuing regular Albany April special term. The writ was served. The case came on to be heard, the relator asking for a peremptory writ. Edward J. Meegan, for relator. I. The power to determine as to town boundaries is given to the board of supervisors and is two-fold in its character. 1. It has authority at its annual meeting, without notice, and by a two-third vote, to alter town boundaries (1 Laws of 1871, p. 23, chap. 18). The only restriction being that assembly districts cannot be altered. To do so would violate section 5 of article 3 of the Constitution (Kinnie agt. Syracuse, 3 Keyes, 110). 2. The second jurisdiction is conferred by chapter 361 of the Laws of 1870 (Sess. Laws, 832; 1 R. S. [6th ed.], 865, sub. 15). This act confers power "to fix, establish, locate and define disputed boundary lines between the several towns, * * by a resolution to be duly passed by a majority of all the members elected to such board. A notice of intention to apply to such board to fix, establish, locate and define such disputed boundary line, particularly describing the same, and the line as proposed to be acted upon by such board, signed by the supervisor," etc., and published in three papers and personally served upon the supervisor and town clerk of the other town to be affected. * II. To confer jurisdiction upon the board of supervisors, the statute must be complied with and the notice given should conform to the statute, and it is submitted that the said notice did not comply with the requirements thereof. 1. Where a court exercises a special jurisdiction under a statute the mode of proceeding must be strictly pursued (Sedg. Stat. and Const. Law [Pomeroy's ed.], 301). Any departure vitiates the whole proceeding (Sedg., supra, 302; People agt. Kniskern, 54 N. Y., 58). 2. When a statute prescribes the mode of acquiring juris |