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Court of Claims, March, 1921.

[Vol. 115.

New Lebanon v. State of New York, 111 Misc. Rep. 310, in which case Judge Morschauser reviewed the various authorities and reached the conclusion that the claim was a public one and not within the jurisdiction of the court under section 264 of the Code of Civil Procedure. That action was based upon an agreement entered into between the town of New Lebanon and the highway department of the state by virtue of which each of the parties was to share the expense of the improvement. The comptroller refused to pay any portion of it on the ground the highway department had no authority to make the contract whereupon the town filed the claim in this court. We held that the claim was a public one, and although the contract was in our opinion a valid and binding one upon the state, it was not within our jurisdiction.

The present case, however, is not brought under the Highway Law but under the Canal Law, section 47 of which provides as follows: "There shall be allowed and paid to every person sustaining damages from the canals or from their use or management, or resulting or arising from the neglect or conduct of any officer of the state having charge thereof, or resulting or arising from any accident or other matter connected with the canals, the amount of such damages to be ascertained and determined by the proper action or proceeding before the court of claims." There is no similar provision in the Highway Law and except for this section of the Canal Law there could be no recovery on this claim.

The sole question presented by this motion is whether the words "every person " include a municipal corporation. If it does the state has waived its immunity for the damages sustained by the village of Seneca Falls, and has submitted its liability to this court for determination. The obvious purpose of the

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Court of Claims, March, 1921.

statute was to secure payment to those suffering damages because of the state system of canals or the neglect of those in charge. The state assumed all liability for such damages and created a forum wherein "every person sustaining damages" could be heard and have his claim adjudicated. The claim herein, which upon this motion we must accept as a true statement of facts, alleges the construction and ownership by the village of Seneca Falls, a domestic municipal corporation, of a sewage system and disposal plant of large value, that the state of New York, in the construction and operation of the Cayuga and Seneca canal injured and damaged its sewers and disposal plant to the extent of $20,000, for which claim is made. Were the claimant an individual his right to recover in this court would be unquestioned. To hold that the individual could recover while a number of individuals incorporated under the Village Law, all damaged from the same cause could not, would scarcely carry out the purpose of this remedial statute. The General Construction Law, section 37, reads: "The ferm person includes a corporation and a joint stock association."

And in the case of Ackert v. City of New York, 156 App. Div. 840, it was expressly held as follows: "Although municipal corporations are not designated by the name, they are included in the term ' person employed in the statute which is defined by section 37 of the General Construction Law as including corporations and joint stock companies." While the point there under discussion was a construction of the Labor Law, the language employed is entirely applicable to the case presented in this record.

Quite a similar construction was adopted by Judge Rodenbeck in the case of O'Bryan v. State of New York, 68 Misc. Rep. 618. He then held that the expres

Surrogate's Court, New York County, March, 1921. [Vol. 115.

sion" individual or corporation " used in section 264 of the Code of Civil Procedure, and in this same section 47 of the Canal Law, included a town, as a town was a corporation. A village is as much of a corporation as a town and both are defined to be such by section 2 of the General Municipal Law. Laws of 1909, chap. 29.

My conclusion is that the word "person" in section 47 of the Canal Law includes a municipal corporation, and a claim filed by a village of the nature here presented is properly a subject for adjudication by this court, and accordingly the state's motion to dismiss is denied.

ACKERSON, P. J., concurs.

Motion denied.

Matter of the Estate of CHARLES SIDENBERG, Deceased

Wills

(Surrogate's Court, New York County, March, 1921.)

construction of holographic codicil of Wills-witnesses-verification.

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A will having been admitted to probate and two holographic codicils thereto denied probate for non-compliance with the Statute of Wills, a third holographic codicil written upon both sides of a one-sheet letter head was offered for probate. On the front page of said codicil the testator commencing "Add to my will" made testamentary dispositions of property, and at the bottom of the page wrote "N. Y. July 13, 1917." On the back of the said paper and addressed "To the Surrogate of the City of N. Y. and my trustee " he expressed his desire, as stated on the other side of the paper, signed his name, and dated the paper February 13, 1919. To the left of his signature were those of two witnesses and below, a verification before a notary public on March 14, 1919. Held, that "N. Y.

Mise.] Surrogate's Court, New York County, March, 1921.

July 13, 1917" and certain words on the back of the paper, as well as the verification, should be stricken out, and February 13, 1919, taken as the date of execution, and as so construed the codicil will be admitted to probate.

PROCEEDING upon the probate of a will.

Walter M. Weis, for proponents.

Emmet, Marvin & Roosevelt (Joseph K. Savage, of counsel), for contestants.

M. S. & I. S. Isaacs, for executors.

Edward W. Stitt, Jr., special guardian.

COHALAN, S. This case illustrates sharply the dangers of will making by laymen. A will drawn under proper legal supervision having been admitted to probate three holographic scripts are offered for probate as codicils thereto. Proof as to two of them fails utterly to satisfy the requisites of law. Probate of the papers dated February 7, 1915, and September 20, 1915, is therefore denied.

The third paper is a one-sheet letterhead. On the front thereof appears the following in the handwriting of the testator: First, the words "Add to my my will as beneficiaries, Two Hundred and Fifty Dollars each" below a column of names, the last four in smaller characters than the first eight. In the right hand margin, written along the length of the page, the following: "Each of my Grand Children One Thousand Dollars at the Age of 21. All Bequests shall be free of Tax." Finally at the bottom, a date, "N. Y., July 13, 1917." On the back, in the decedent's handwriting, appears the following: "To the Surrogate of

Surrogate's Court, New York County, March, 1921. [Vol. 115.

the City of N. Y. and my trustee, I want the names on the other side to receive the amounts stated just the same as if it were embodied in my will. I will embody it in my will as soon as it is rewritten." Then appears the signature of the decedent, "Charles Sidenberg" and a date beneath the signature, Feb. 13, 1919." To the left side are the signatures of two witnesses. To the right of these signatures, and below the signature of the decedent, are the words: "It will be observed I have given to those I thought needed it most." Then follows a verification before M. A. Fowler, a Notary Public, on March 14, 1919.

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The contestant has stressed the difference in dates on front and back of the paper, and argued that each side is a separate instrument, and that the doctrine of incorporation by reference is involved. I am not in accord with such view. The script probably was not written at the same time, but that is not fatal to it being considered as one instrument. The testator, I am confident, looked upon it as a single documert. It is the common sense view and the view I adopt. True, the witnesses at the time of execution saw only the back, and are unable to state whether or not the writing on the front was there, but there is nothing unnatural in this. There is also some haziness and an extraordinary lack of memory on the part of the subscribing witnesses as to the mechanics of the making, but despite this it is my opinion that the only question for solution is whether or not the document is signed at the end.

The enlightening opinion of the Court of Appeals in Matter of Field, 204 N. Y. 448, is broad enough in my judgment to sweep away any doubt that this script is signed at the literary, natural, logical, speaking and constructive end thereof. Starting to read on the front and what is more natural than for a layman

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