tional amendment affecting these tribunals was the judiciary article of the Constitution which was adopted in 1869, when the rest of the Constitution proposed by the convention of 1867 was rejected by the people. This judiciary article provided, in section 15 thereof, as follows: "The existing County Courts are continued, and the judges thereof now in office" at the adoption of this article "shall hold their offices until the expiration of their respective terms." So we have the County Courts of the Constitution of 1846 expressly continued down to the present day. If the county clerk was entitled to be and was clerk of the County Court as that tribunal existed under the Constitution of 1846, then he is entitled to remain clerk of the County Court now, under the principles laid down in the Warner Case, the soundness of which has never been questioned. to another who is to be appointed in a differ- | characterized as new in the case of Frees v. ent manner and to hold the office by a differ- Ford, supra. The only intervening constituent tenure than that which was provided for by the Constitution, it is not a legitimate exercise of the right to regulate the duties or emoluments of the office but an infringement upon the constitutional mode of appointment." The Warner Case involved the constitutionality of an act of the Legislature passed in 1843 (Laws 1843, c. 88), which provided that the clerk of the Court of Common Pleas for the city and county of New York should be appointed by the court and should be and act as clerk of the County Court. At the time of the adoption of the Constitution of 1821 the county clerk of New York was clerk of the Court of Common Pleas. "The clerkship of the court," said Mr. Justice Bronson, "was not a mere incident to the office of clerk of the county, but was a part of the office. The question is whether the Legislature had the constitutional power to pass such a law. I think it had not. In effect this statute divides the office of the clerk of the city and county of New York into two parts, and as to the largest share, in point of duty and emolument, takes the choice of the officer from the electors of the county and gives the appointment to the court. If this can be rightfully done, I do not see any security for the residue of the office. The Legislature Constitution. If, therefore, the clerkship may take that also and give the appointment of the officer to some court or to the Governor and Senate; and thus the constitutional provision for a choice by the electors would be completely nullified." 2 Denio, 274, 43 Am. Dec. 740. * * * By section 65 of chapter 280 of the Laws of 1847 it was provided that the clerks of the several counties should be, among other things, clerks of the County Courts and Courts of Sessions within their respective counties, except in the city and county of New York. They have remained clerks of the County Courts ever since and were such at the time of the adoption of the present of the County Court is a substantial and essential attribute or part of the office of county clerk, the Legislature cannot enact a statute which bestows that clerkship upon a nonelective officer to the exclusion of the county clerk, even though such officer be designated by the county clerk himself. In brief, the county clerk cannot be deprived of the right to act as clerk of the County Court while the duties of such clerkship continue to exist. To meet the force and effect of this decision as an authority, the learned courts be low and counsel for the respondent insist that, whatever may have been the ancient powers and privileges of the county clerk in regard to the clerkship of the County Court The case of State ex rel. Kennedy v. those powers and privileges did not continue | Brunst, 26 Wis. 412, 7 Am. Rep. 84, is very after the adoption of the Constitution of similar in principle to the case at bar. There 1846. This proposition is based on a remark it was held by the Supreme Court of Wisin the opinion in Frees v. Ford, 6 N. Y. 176, consin that "it was not competent for the to the effect that the County Court referred Legislature to take from the constitutional to in that Constitution was "a new court office of sheriff a part of the office itself and with a limited statutory jurisdiction" in- transfer it to an officer appointed in a difstead of being a tribunal of general jurisdic- ferent manner and holding the office by a tion, as was the old Court of Common Pleas. different tenure from that which was providThe distinction there under discussion, how- ed for in the Constitution," although the ever, has no relevancy to the question here. Constitution nowhere defined what powers, We are concerned, in the present case, with rights, or duties should attach or belong to the powers of the county clerk at the time of the office of sheriff, and these were ascerthe adoption of the existing Constitution (the tained in that particular case by reference Constitution of 1894). That instrument pro- to immemorial custom. vides that the existing County Courts “are continued" (article 6, § 14), and that sheriffs, clerks of counties, district attorneys and registers in counties having registers shall be chosen by the electors of the respective counties (article 10, § 1). The County Courts thus continued by the Constitution of 1894 were It is not intended to assert that the Leg islature may not authorize the county clerk to act through a deputy in performing his duties as clerk of the County Court of Kings county, and it matters not that this deputy is denominated a chief clerk; but the Legislature cannot provide for such a chief clerk way as to exclude the county clerk from any activities as clerk of the County Court or who may continue in office against the will of his nominal superior by reason of enjoying a fixed term; yet this is precisely what has been attempted here. At first blush it may seem that a statute does not deprive the county clerk of the clerkship of the County Court which in terms expressly vests the county clerk himself with the power to appoint the deputy who is to act as chief clerk of the County Court. This view would be correct if the so-called deputy who is to act as chief clerk of the County Court was really a deputy whose term was coincident with that of the county clerk and who was removable by the county clerk at will, and if the statute did not virtually make the so-called deputy the clerk of the County Court to the virtual exclusion of the county clerk. The term of the chief clerk being fixed by section 282 of the Judiciary Law as last amended at the period of five years, and the term of the county clerk of Kings county being only two years, it might very well happen that a county clerk would come into office finding a socalled deputy installed in the chief clerkship of the County Court, who was appointed by his predecessor and whom he would possess no power to remove or interfere with in the discharge of his duties in any manner, except in the case of official misconduct. A statute which may operate in this manner practically deprives the county clerk of all real authority in the matter of the clerkship of the County Court just as much as though the power of appointing the chief clerk of that tribunal were vested in a wholly different officer or body of officers. In the opinion of the Appellate Division, reference is made to the fact that under section 195 of the Judiciary Law, as it was before being amended in 1907, the power to appoint the chief clerk for the County Court was vested in the county judges, and it is said that the validity of such procedure was unquestioned. The fact that it was unquestioned, however, did not make the enactment constitutional. Indeed, if the view which has been taken in this opinion is correct, the bestowal of the power of appointment upon the county judges was a legislative act in disregard of the fundamental law. Reference is also made to the fact that in recent years a large number of laws have from time to time been passed providing for the appointment of special deputy clerks by justices of the Supreme Court to attend upon the several parts of that court, and it is said that the validity of such legislation has been generally recognized by the Legislature, the state departments, the local authorities, and the courts. In support of this statement the case of Fink v. Wallach, 109 App. Div. 718, 96 N. Y. Supp. 543, is cited. That, case, however, does not discuss the constitutionality of to any question which is pertinent to this discussion merely holds that the deputies of the county clerk appointed by the justices of the Appellate Division in the First Department under chapter 553 of the Laws of 1895 were in fact deputies of the county clerk himself; indeed, the statute under which such appointments are made expressly provides that such special deputy clerks and assistants shall be subject to the supervision of the county clerk. In any event, whatever may have been decided by the Appellate Division on this subject, it is clear that no legislation can be constitutional which prevents the county clerk from being the clerk of the Supreme Court. The Constitution (article 6, § 19) expressly provides as follows: "Clerks of the several counties shall be clerks of the Supreme Court, with such powers and duties as shall be prescribed by law." Under this provision the Legislature may prescribe the powers and duties of the clerks of the Supreme Court, but it may not deprive the clerks of the several counties of the right to exercise and discharge those powers and duties by any form of legislation. Again it is said that the Constitution does not prescribe the duties of any county clerk in any respect save as provided in the clause above quoted, making the clerks of the several counties clerks of the Supreme Court; hence it is argued that, inasmuch as there is no provision that the county clerks shall be clerks of the County Courts, it was the intention of the framers of the Constitution to empower the Legislature to make any provision it saw fit in respect to the clerkship of that tribunal. The answer to this proposition is found in the case of Warner v. People, supra, which, as has been shown, is clearly authority for the proposition that the clerkship of the County Court is a substantial part of the office of county clerk. The conclusions which have been reached may be stated as follows: Those portions of the Judiciary Law which operate to prevent an incoming county clerk from appointing a new chief clerk of the County Court of Kings county are unconstitutional, as also are those provisions which operate to vest said chief clerk with all the powers and authorize him to fulfill all the duties of the county clerk at any sitting or term of the County Court to the exclusion of the county clerk himself. In other words, the Legislature has no power by fixing the term of the chief clerk of the County Court at five years to deprive the county clerk of the clerkship of the County Court, to which he is entitled under the Constitution. No objection is perceived, however, to the validity of the other portions of the Judiciary Law which have been considered. Only those provisions are unconstitutional which interfere with the free exercise of the right of the county clerk to control any deputy whose appointment is authorized by law to act in his behalf as clerk of the Coun The judgment of the Appellate Division and that of the Trial Term should be reversed, and, inasmuch as the facts are undisputed and could not be changed upon a new trial, judgment should be directed upon the findings in favor of the appellant, with costs in all courts. CULLEN, C. J., and GRAY, WERNER, CHASE, COLLIN, and HOGAN, JJ., concur. Judgment reversed, etc. (209 N. Y. 1) TIFFANY v. TOWN OF OYSTER BAY et al. (Court of Appeals of New York. June 3, 1913.) 1. BOUNDARIES (§ 14*)-CONSTRUCTION-"THE SOUND." "The Sound," as the northern boundary in an ancient patent granting land on Long Island, is Long Island Sound proper, and not the shore line of a harbor or bay opening into it. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 102-107; Dec. Dig. § 14.*] 2. NAVIGABLE WATERS (§ 36*) GRANTS BOUNDARIES-SEA OR NAVIGABLE ARM. A grant of land bounded by the sea, or a navigable arm of it, or a navigable river where the tide ebbs and flows, in the absence of language clearly indicating a different intent, carries the title only to high-water mark. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. § 36.*] 3. APPEAL AND ERROR (§ 1082*)-INTERMEDIATE COURTS-REVIEW-MATTERS CONSIDERED AS EVIDENCE, Where, on appeal to the Appellate Division, the court at the instance of respondent considered patents not put in evidence at the trial, the Court of Appeals, on a further appeal to it, may consider them, and adopt a different view from that of the Appellate Division as to their meaning and effect. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1133-1136, 4270, 42814284, 4289-4292; Dec. Dig. § 1082.*] 4. NAVIGABLE WATERS (§ 36*)-GRANTS-LAND UNDER WATER. In the light of the Huntington patent of 1666 and the Horse Neck patent of 1667, the Andros patent of 1677, to the town of Oyster Bay, grants the whole of the land under water in Cold Spring Harbor and Oyster Bay. [Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. § 36.*] Gray, J., dissenting. Appeal from Supreme Court, Appellate Division, Second Department. Action by Louis C. Tiffany against the Town of Oyster Bay and others. From a judgment of the Appellate Division (141 App. Div. 720, 126 N. Y. Supp. 910), affirming by a divided court a judgment for plaintiff, defendants appeal. Reversed. Henry A. Uterhart, of New York City, for appellants. Willard N. Baylis, of New York City, for respondent. WILLARD BARTLETT, J. This case is another controversy in the long series of litigations involving the true meaning and proper construction of ancient colonial charters relating to lands under water on Long Island; and it presents questions of considerable difficulty which have led to a very decided difference of opinion in the court below. The rights of the parties depend upon the title to the lands under water in the bay known as Cold Spring Harbor. The trial judge and a majority of the Appellate Division have held that this title, prior to the grant to the plaintiff, was vested in the state, while two of the Appellate Division justices are of opinion that it was granted to the town of Oyster Bay by the Andros patent of September 29, 1677, and hence that the state never acquired any interest in the land under water which it assumed to convey to the plaintiff, the right to the possession of which he has thus far successfully asserted in this action. The plaintiff is the owner of about 400 acres of upland at Cove Neck, extending about 3,670 feet along the westerly shore of Cold, Spring Harbor. On March 30, 1905, the state of New York executed and delivered to him a grant of the lands under water in front of this upland, for the purpose of erecting on the lands thus granted boathouses and other structures specified in the letters patent, which letters provided that the grant should become null and void unless the improvements were completed within five years. Prior to August 1, 1906, the plaintiff had erected a boathouse and other structures between high and low water mark in front of his uplands; when the officers and agents of the town of Oyster Bay partly demolished the same, acting under the direction of the town, and notified the plaintiff that he must not attempt to restore or maintain them, claiming to justify their action on the ground of the town's ownership of all the lands under water in Cold Spring Harbor by virtue of the title acquired under the Andros patent of 1677, which will be more fully considered hereafter. This suit was thereupon instituted to enjoin and restrain the town, its officers and agents, from entering upon the lands under water embraced in the letters patent from the state to the plaintiff, or interfering in any manner with his possession of the same. The trial judge decided that neither the town of Oyster Bay nor its predecessors acquired any title to the lands under water in Cold Spring Harbor below high-water mark, by virtue of the Andros patent or otherwise; that by virtue of the letters patent from the state already mentioned the plaintiff became and was the lawful owner of a beneficial enjoyment in the lands under water in front of his upland, as in terms thereby conveyed, and that the plaintiff was therefore entitled to the per manent injunction for which he prayed. [cident with the eastern shore of Cold Spring Judgment was entered accordingly, and the Harbor, thus including the whole of that present appeal is from the determination of harbor in the grant to Oyster Bay. the Appellate Division affirming that judgment. The Andros patent, upon the interpretation of which the determination of this appeal depends, was executed on September 29, 1677, by Sir Edmund Andros, then Governor General of New York under James, Duke of York, to Henry Townsend, Sr., and six other persons named therein, as patentees for and on behalf of themselves and their associates, the freeholders and inhabitants of the town, which is characterized at the beginning of the patent as "a certaine Towne in the North Riding of Yorkshire upon Long Island, commonly called & knowne by the name of Oyster Bay, Scituate, lying and being on the North side of the said. Island towards the Sound, having a certain tract of land thereunto belonging." The property conveyed to the patentees is thus described: "The East bounds whereof begin att the head of the COLD SPRING and so to range upon the Southward line from the SOUND or NORTH SEA to the SOUTH SEA cross the Island to the South East bounds of their South Meadows at a certaine River called by the Indyans WARRASKETUCK, then running along the Sea Cost Westerly to another certaine River called ARRASQUANG; then Northarly to the Eastermost extent of the Great Playnes where the line divides Hempstead and Robert Williams bounds from thence stretching Westerly along the middle of the said Playnes till it bears South from the said Robert Williams markt tree at the Point of Trees called CANTIAGGE, thence on a North line to the said Markt Tree, and then on a North North West line Somewhat Westerly to the head of Hempstead Harbour, on ye East side so to the Sound, and from thence Easterly Along the Sound to the aforemenconed North and South Line which runs cross the Island by the COLD SPRING aforesaid, Bounded on the North by the Sound, on the East by Huntington Limmitts on the South part by the Sea and part by Hempstead Limmitts, and on the west by the Bounds of Hempstead aforesaid; including all the Necks of Land and Islands within the aforesd described Bounds and Limmitts." [1] The phrase "Huntington Limmitts" is a most important element in determining the location of the eastern boundary of the tract granted by the Andros patent. The draftsman of the patent manifestly contemplated a straight line passing through the head of Cold Spring Harbor and extending southward coincident with the western boundary of Huntington, through the middle of the island to the South Sea, and directly northward to the sound, except in so far as prior grants to Huntington and Horse Neck might prevent the continuance of a straight line in that direction. The first description in the patent ends, not at the head of Cold Spring Harbor, where it begins, but at a point on the Sound where the northern boundary, prolonged eastward, strikes the aforementioned north and south line which runs across the island by the Cold Spring aforesaid. It is only by this construction that effect can be given to the description of the north boundary in the Andros patent which runs from the point where the east side of Hempstead Harbor reaches the sound; "Thence Easterly Along the Sound to the aforemenconed North and South line which runs cross the Island by the Cold Spring aforesaid." The plaintiff's construction makes this north boundary run, not along the sound, but along the western shore of Cold Spring Harbor, which is not a part of the sound and not easterly, but south by east along such western shore. This is too great a departure from the language of the patent to be sanctioned. Cold Spring Harbor is not to be deemed a part of the sound within the meaning of the patent, unless the term here is to be interpreted differently from the meaning given to it in other similar grants. In the ancient colonial charters granting land on Long Island, in which the sound is named as the boundary on the north, the term refers directly to the body of water known by such name, and does not include waters opening into it or connected with it. Lowndes v. Huntington, 153 U. S. 1, 22, 27, 14 Sup. Ct. 758, 762 (38 L. Ed. 615). "The northern boundaries in all these charters is given as 'the Sound.' That was then, and is now, a well-known body of water. It opens into the Atlantic Ocean, but is separate and distinct therefrom. Into it flow many rivers, and open many bays, harbors, and inlets; but the fact of a connection between them and it does not make them a part of the Sound." The difference between the parties relates chiefly to a part of the eastern boundary of the tract thus granted, namely, that portion between the head of Cold Spring Harbor, or the Cold Spring proper at the south end of the harbor and the sound. The plaintiff contends, and has satisfied the court below, that It is to be observed that the Andros patent this part of the eastern boundary runs along contains altogether three statements with the west shore of Cold Spring Harbor, thus reference to the eastern boundary of the excluding the harbor from the grant, while town of Oyster Bay. The first is as follows: the defendants insist that if the Andros pat-"The East bounds whereof begin at the head ent be construed as it should be with the of the Cold Spring and so to range upon the prior patents of Huntington and Horse (now Southward line from the Sound or North South East bounds of their South Meadows! thereto was conveyed under the clause which at a certaine River called by the Indyans embraces in the grant "also all Havens, HarWarrasketuck." The second statement de- bor, Creekes," .etc. This clause, however, is scribes the end of the boundary from the qualified by the requirement that such haeast side of Hempstead Harbor at the sound vens, harbors, and creeks must be “within as running "from thence Easterly along the limits and bounds aforementioned"; and, inSound to the aforemenconed North and South asmuch as the western limit was high-water Line which runs cross the Island by the Cold mark along the eastern shore of Cold Spring Spring aforesaid." And, finally, we have in Harbor, the harbor itself cannot be deemed the third place a general description of the to be "within the limits and bounds aforeentire tract conveyed as "Bounded on the mentioned," but on the contrary is clearly North by the Sound, on the East by Hunting- outside of them. ton Limmitts, on the South Part by the Sea and part by Hempstead Limmitts and on the West by the Bounds of Hempstead aforesaid; including all the Necks of Land and Islands within the aforesd described Bounds and Limmitts." The next grant, antecedent to the Oyster Bay patent, to which counsel for the respondent calls our attention as proper to be considered in construing the latter grant, is the patent to Horse (now Lloyd's) Neck, made by Governor Nicolls to Nathaniel Sylvester and others on November 20, 1667. The tract thereby conveyed is described as follows: "A certain parcell or tract of Land in the North Riding of Yorkshire on Long Island & being in a Neck on the North side thereof stretching out into the Sound or East River commonly called by the name of Horse Neck, bounded on the West with Oysterbay on the east with Cow Harbor toward the North with the Sound and toward the South with a Beach extending to the head of a certain Creek which parteth or dividith the bounds of the Town of Huntington & the said Neck." The part of this description material to the present controversy is the clause "bounded on the West with Oyster Bay." Oyster Bay was and is a navigable arm of the sea, and, as in the case of Cold Spring Harbor, a grant bounded thereon is subject to the rule of the common law that it extends only to high-water mark. As it aptly suggested in the brief of respondent's counsel, it seems essential in construing the grant to Oyster Bay that the court have in mind the language used in creating the municipalities which abut on the body of water in question; and he calls our attention in the first place to the Nicolls patent to Huntington in 1666, which conveys "From a certaine river or creeke on the West com'only called by the Indyans by the name of Nackaquatck and by the English the Cold Spring, to stretch eastward to Nasaquack River; on the North to bee bounded by the Sound running betwixt Long Island and the Maine; and on ye South by ye sea, including there nine several necks of Meadow Ground, all which tract of land together with the s'd necks thereunto belonging, within the bounds, limitts aforesaid, and all or any plantacon thereupon are to belong to the said Towns of Huntington, as also all Havens, Harbors, Creekes, Quarrys, Woodland, Meadows, Pastures, Marshes, Lakes, Fishing, Hawking, Hunting and Fowling and all other profitts, commodetyes, Emolum'ts and Hereditam'ts to the said land and premises within limits and bounds aforementioned, describ-sideration now on the ground that they were ed, belonging." [2] Here we have a certain river or creek, called by the English the Cold Spring, given as the western boundary of Huntington. Clearly this creek formed part of the "Huntington Limmitts" mentioned in the Andros patent to Oyster Bay 11 years later. The Huntington patent, however, conveyed no part of such creek to the town of Huntington beyond high-water mark. In the absence of language clearly indicating a different intent, grants of land bounded by the sea or a navigable river where the tide ebbs and flows carry the title only to high-water mark. Sage v. Mayor, etc., of N. Y., 154 N. Y. 61, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592; Matter of Mayor, etc., of New York, 182 N. Y. 361, 75 N. E. 156. So that Huntington acquired no part of the land under water in Cold Spring Harbor by virtue of its patent prior to the Andros patent to [3] Notwithstanding his own suggestion that a consideration of these patents is essential to a proper understanding of the case, the learned counsel for the respondent in another part of his brief objects to their con not introduced in evidence upon the trial. It appears, however, that they were brought to the attention of the Appellate Division in behalf of the respondent, when the case was before that court, for the purpose of sustaining the judgment. Nevertheless, it is argued that records which were not put in evidence at the trial can be considered by an appellate court only for the purpose of upholding a judgment, but never for the purpose of reversing it. Assuming that this rule may have been applicable in the Appellate Division, it cannot be deemed controlling here under the circumstances. The court of intermediate appeal, at the instance of the respondent, has considered these records, and must be deemed to have based its decision upon them in addition to the evidence regularly in the case. It would be manifestly unfair for the court of last resort to refuse to take cognizance of such records thus vol |