The moving papers disclose that counsel for the defense employed one Thomas F. Cassidy, an investigator, to find evidence to prove the falsity of the testimony given at the trial by Florence Wong and Grace This was also excluded. There were other Mack. The efforts made in this behalf may questions along the same line and similar be conveniently divided into two distinct rulings. It is to be noted that these questions parts: (1) The work done in the city of relate to statements made by Judge Curtis New York by Cassidy and his assistants. as prosecuting counsel in the proceeding in (2) The effort assigned to Hazel Trueman the Magistrate's Court against Li Fong and in the city of Philadelphia. As to the proFrank Yee, and to other matters connected ceedings in New York it appears that Frank with that proceeding. They seem to have Treglia, alias "Rubber," was a well-known been asked for the purpose of showing what character in Chinatown, who had been callJudge Curtis had said and what the counseled as a witness for the prosecution on the for Li Fong and Frank Yee omitted to say in the conduct of the examination. All this

another murder. Treglia spoke of two women who had been witnesses, and in this connection he mentioned Mabel Fitch and Katie Earl, who were witnesses in Jung Hing's case. Sometimes he referred to a "Chinaman" in the singular and again to "Chinamen" in the plural. Thus the disconnected story was spun out until the very end of the affidavit of stenographer Murray, where there is finally something that may be said to be tangible. The dictograph records the voice of a woman:

"I am getting right sleepy."
Rubber: "When they vote and the women are
suffragettes"-

A woman: "What became of”—
Rubber: "She is dead and buried."

A woman: "I know Florence. This is another case in-What about"—

Carette: "You are thinking of Gracie Mack."
A woman: "Who is she?"

Rubber: "She has lived there for three years."

A woman: "Did she not testify against the Chinamen?"

Rubber: "Yes. There were three of them, you know, for the prosecution; she and a girl there named Florence Wong. They were the ones who sent these two Chinamen up, and who testified against them for shooting in the arcade. I got them for witnesses. They were going to Philadelphia, you see; her mother was dead, and she takes this other girl, Gracie, a friend across the street, to visit there. They lived in 17, and that is right opposite, across the street, and this girl was with her, and when they got to the middle of the street the shots were fired. If it hadn't been for the two girls the little fellow could have got away; the women were right in the middle of the street, with every one there, and couldn't move. So this Grace Mack got away to Philadelphia and the other girl kept here quiet. At the coroner's court they did not appear, but we got them here at the trial; I did not mention them until then."

A woman: "Did they see the shooting?" Rubber: "They didn't like to go down; they would be ripped up for being with Chinamen, and all that; but we got them on the stand."

to have taken part in the symposium at 134th street.

Two other affidavits, of Snow and Kearney, the stenographers who were at the receiving end of the dictograph which had been installed in apartment No. 9 in No. 17 Mott street, purport to set forth a conversation between a man, evidently a Chinaman, and a woman, whom he addressed as Gracie. At a certain stage of this conversation the dictograph recorded the closing of the door, and this was followed by a woman's voice calling:

"Flossie, come up, I want to see you."

It does not appear that "Flossie" responded to the call, except as that may be inferred from the dialogue which followed. It began thus:

"Say, Flossie, I wonder how they know about that room. What did that girl say to you

in Philadelphia?"

The response is apparently made by "Flossie," although there is nothing to indicate it except the context:

"She sent for me to come around to a restaurant. She said she had a note from a friend of mine in New York. When I saw her she asked me if I was Flossie Wong, and I said I was. She handed me a note from Little Chink, and asked me to get her some hop, and she said she would do me a favor. She told me how Rubber was shooting off his mouth, how smart he was, and how you and me and Jim Gun and he were downstairs, and he told us how to testify. Somebody must have talked and you say you didn't, so who in hell did? have been that Rubber. Gee, if they found that out they will easily find out that I was in the pictures-are liable to get in trouble. Gee, I wish we hadn't let Rubber in that room that day, for I knew damn well he couldn't keep his mouth shut, and besides my chink didn't want me to go and be a witness, for the last words he said were I would get in trouble."

It must

Here "Gracie" seems to have interpolated: "Oh, don't lose your nerve. Nobody has got anything on us. What the hell-we have the district attorney back of us, ain't we?"

And "Flossie" responded:

I am going downstairs now, and I will see
Little Chink to-night, but he won't talk to me;
he always walks away when I come near him.
When I hear anything I will let you know.
Good-bye, Gracie.",

"So long."

The two women, Florence Wong and Grace Mack, made affidavits containing categorical denials of any such conversation.

In all this long dialogue, carried on between persons sodden with drink and drug, "Yes, but you know them chinks will spend the passages just quoted are the only ones money and they ain't dead yet, and that Mcthat plainly refer to the case of these defend-Manus is a son of a bitch and a smart bastard. ants, and we find in them nothing that conflicts with the testimony given at the trial. We may safely go further, indeed, and say that, if effect is to be given to any of the conversation, this latter part is obviously much more pertinent, coherent, and intelligible than anything that preceded it. The affidavit of Murray, the stenographer, is corroborated by his colleague, Harris, and there are the affidavits of Carette, the paid investigator, and of Curran, his assistant, which attribute to Treglia various statements indicating that he had asserted or admitted that the women, Florence Wong and Grace Mack, had not witnessed the shooting, and that he had suborned them to appear at the trial. The averments of these affidavits are flatly denied by the affidavits of Florence Wong, Grace Mack, and Treglia. It is to be observed, in passing, that there are no affidavits by the women who are said

The occurrences in Philadelphia are set forth in the affidavits of Snow and Kearney, the stenographers, and of a woman named Hazel Trueman. According to the averments of this woman, she had formerly been an habitué of Chinatown, but at the time of making her affidavit she resided in Springfield, Mass. She had been retained by Cassidy to go to Philadelphia to assist in getting evidence for A room had been hired at No. a new trial. 210 North Tenth street in Philadelphia, to which she went, and there met Snow and Kearney. Acting upon information that the

Wong woman was in the habit of frequenting | you an awful roast at a picnic a week ago a restaurant at the corner of Tenth and Win- Sunday, and Little Chink had a fight with ter streets, the stenographers and Trueman him on account of it;" that Wong asked, went there and waited for her from 4 o'clock | "What did he give me a roast for?" and of one afternoon until 7 in the evening. She Trueman replied, "For being in the trial, you did not appear, and so a note was sent to her and Grace Mack;" that Wong then said, asking her to come to the restaurant. When "Well, when I go back, I will see what he she finally came in, Trueman was seated at can say about me." Although Florence Wong one table and Kearney at another. She ask- does not deny categorically the statements of ed aloud: Trueman and Kearney as to the Philadelphia interview, her account of it is radically different from theirs.

"Do you know what girl sent for me?" To which Trueman replied:

"I am the girl who sent for you; I know you, but you don't know me. Little Chink gave me this letter to give to you."

A letter was handed to Florence Wong. The two women talked a while, when Trueman said:

From the foregoing synopsis of the affidavits used on the motion for a new trial it is apparent that the defendants have produced nothing new or substantive that would probably have changed the verdict if it had been produced at the trial. The whole proceeding, "I am going to tip you off to something. It from beginning to end, was simply an effort is none of my business, but a week ago last to impeach the witnesses Florence Wong and Sunday Rubber and Little Chink and I and my Grace Mack; and that, as we have seen, is friend went on an excursion. We were all seated at a table drinking, and Rubber com- not a sufficient reason for granting a new menced bragging what a wise guy he was. He trial on the ground of newly discovered evisaid that he and Jim Gun went into room 8, dence, even where the impeachment is suc17 Mott street, and told you and Gracie Mack what to say to send those two Chinamen up to Sing Sing to the chair.”

The affidavit of Trueman goes on to say that she asked Wong if she knew Rubber, and that Wong looked up at her and turned white, trembled for a second, and said:

"Why Rubber worked for the society." To which Trueman replied:

"I know it, he makes $20 a week." The Trueman affidavit further attributes to Florence Wong the following statement: "Well, you know those two Chinks ain't dead yet and I have to be careful. If Rubber does not stop talking he will put us all in jail."

cessful.

For the foregoing reasons the judgment of conviction herein should be affirmed, and the motion for a new trial be denied.

CHASE, COLLIN and CUDDEBACK, JJ., concur. HOGAN and CARDOZO, JJ., dissent. WILLARD BARTLETT, C. J., not voting.

Judgment of conviction affirmed.

(212 N. Y. 325)

CITY OF NEW YORK. (Court of Appeals of New York. July 14, 1914.)

1. BOUNDARIES (§ 13*)-STREAMS.

These statements are corroborated by Kear- In re OPENING WEST FARMS ROAD IN ney. The affidavit of Florence Wong admits the meeting in Philadelphia, but gives an entirely different version of it. She says that she went into this restaurant and asked a man of her acquaintance whether he knew who had sent for her; that thereupon Trueman introduced herself as Helen, and replied, "I am the one that sent for you; I want to talk with you;" that they then sat down at a table, when Trueman produced a note supposed to have been written by a New York Chinaman known as Little Chink; that Wong asked Trueman, "What do you want of me?"

and Trueman said that she had the opium habit and wanted a place to smoke; that Wong replied she did not smoke herself now; that it was awfully strict in Philadelphia, and that she could not take her to any place; that Trueman then stated that she had a layout in a dress suit case, and, if the hop could be procured, she would go to a hotel and smoke; that Trueman produced money, and Wong tried to find a Chinaman to send after the opium, and in the interval Trueman asked Wong if she knew Rubber, to which Wong replied in the affirmative; that Trueman then said, "Well, when you go back to New York, you ought to see him because he gave

A conveyance bounded by or on a stream will ordinarily be regarded as running to the center of the stream, but the grantor may so by the bank of the stream that he will retain definitely and specifically bound his conveyance title to the land from the bank to the center.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 95-101; Dec. Dig. § 13.*] 2. BOUNDARIES (§ 13*)-STREAMS.

Where a wall and a causeway or road were built on the bank of a navigable stream, a deed the stream, which described the property as by a municipal corporation to land abutting on running along the causeway, thence running along the creek, thence by and with the creek to a turn in the wall, thence still along by the and wall to a slip, thence by and with the slip wall to the starting point, conveyed only the land to the bank of the stream and not to the center, for, while a conveyance to a monument located on the side of a stream does not always prevent the boundary thereby marked from extending to the stream center, the fact that the land was bounded partly by the wall and partly by the creek bank showed that it could not have been intended to convey to the bed of the stream.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 95-101; Dec. Dig. § 13.*]

STRUCTION.

3. EMINENT DOMAIN (§ 164*)—Awards-CON- the creek and slip that in accordance with extended to the middle line of these streams well-established principles of law the title and included said other parcels.

Where upland which ran only to the bank of a stream was condemned for a street as well as the parcels in the stream in front of the upland and servient thereto, the award of damages to the owner of the upland must be taken to include an award for the extinguishment of his easements, particularly where the awards for the small servient parcels were made to unknown owners instead of to the owner of the upland.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 442-444; Dec. Dig. § 164.*]

Appeal from Supreme Court, Appellate Division, First Department.

Application of the City of New York to acquire lands for the opening of a street. From an order of the Appellate Division (161 App. Div. 530, 146 N. Y. Supp. 600), reversing an order directing that certain awards to unknown owners should be paid to the petitioner, Mary C. C. Clark, and directing that they should be paid to the city, petitioner appeals. Affirmed.

Benjamin Trapnell, of New York City, for appellant Mary C. C. Clark, as administratrix, etc., of Thomas S. Ryan, deceased. Frank L. Polk, Corp. Counsel, of New York City (Joel J. Squier, of New York City, of counsel), for respondents, the Comptroller of the City of New York and the City of New York.

While the Appellate Division assumed that the terms of the conveyance of parcel No. 234 to Ryan were such that, in the case of a private grantor, they would carry title to the middle of the stream and include said parcels, it reached the conclusion that the rules of construction which would apply to a conveyance by such a private grantor were not applicable in this case.

All of these premises, including the bed of the stream, were part of a tract of land conveyed by Governor Nicoll to John Quimby and others for and in behalf of the ancient town of Westchester, and the title to Mr. Ryan of parcel No. 234 came from said town. The Appellate Division entertained the view that the town acquired title to the bed of the creek in its governmental capacity and charged with the duty of holding it for public purposes, especially of commerce, and that under such circumstances it would not be assumed or held that a conveyance by the town of uplands merely bounded by or along the stream was intended to carry title to the center of such stream. Matter of Mayor, etc., of N. Y., 182 N. Y. 361, 75 N. E. 156, 108 Am. St. Rep. 809. Such construction of the Ryan conveyance excluded said parcels Nos. 235 and 236, and, inasmuch as the city of New York had succeeded to any title remaining in the town of Westchester, it was held that it was the owner in fee of said parcels and entitled to the awards therefor.

HISCOCK, J. As its title indicates, the general proceeding in which the particular application now before us arose was instituted by the city of New York to acquire title to lands necessary for the purpose of opening a street. Three parcels of land are especially involved which have come to be known, respectively, as damage parcels Nos. 234, 235, and 236. In the original proceeding a substantial award for No. 234 was made to one Ryan, who was the conceded owner thereof. Awards were made for the other two parcels to "unknown owners," and the petitioner is seeking to have such awards now paid to her as the representative of Mr. Ryan, who she alleges was the owner of said premises. The Special Term granted her application, but the Appellate Division reversed this determination and directed [1] While it has been abundantly establishthat the same be paid to the city of Newed that a conveyance bounded by or on a York as owner.

At the locality in question an angle is formed by the waters of Westchester creek proper and a channel or slip extending therefrom.

The question thus defined by the claims of the petitioner and by the opposing views of the courts below, and which has been elaborately argued before us, would not only be interesting but surrounded by some difficulties of decision, if actually presented. I have reached the conclusion, however, that it is not presented. It has only seemed to arise on the finding or presumption that parcel No. 234 was bounded by the creek in terms which under ordinary circumstances would carry title to the center thereof.

stream will be construed and will be regarded as running to the center of the stream on the theory that it could not be anticipated that a grantor would desire to reThese waters are both tidal and navi- tain title to the bed of the stream between gable. Parcel No. 234 concededly extended the shore and the center line thereof when to the bank of the creek on one side and to he had conveyed the abutting uplands, it is the bank of the aforesaid channel or slip on equally well established that a grantor may the other, and the other parcels lie adjacent so definitely and specifically bound his conthereto, respectively, in the bed of the creek veyance by the bank of the stream that no and of the slip. The petitioner's contention, process of interpretation will carry title to which was sustained by the Special Term, the center thereof. Smith v. City of Rochesis that the deed to her testator of parcel No. ter, 92 N. Y. 463, 479, 44 Am. Rep. 393; 234 so bounded the same "along" and "by" | Gouverneur v. Nat. Ice Co., 134 N. Y. 355, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

to the place of beginning. The "point marked on the causeway by Westchester creek" was not actually found or established for the purposes of this proceeding, and it will be assumed that it might either be on the bank or in the center of the stream. While the location of a point "by" a creek would naturally

31 N. E 865, 18 L. R. A. 695, 30 Am. St. Rep. 669; Smith v. Bartlett, 180 N. Y. 360, 73 N. E. 63; Fulton L., H. & P. Co. v. State of N. Y., 200 N. Y. 400, 404, 94 N. E. 199, 37 L. R. A. (N. S.) 307; Starr v. Child, 5 Denio, 599; Halsey v. McCormick, 13 N. Y. 296. The rule in this respect is the same as in the case of a conveyance of land abut-indicate that it is on the bank of rather than ting on a highway and bounded by the exterior line. Matter of City of N. Y., 209 N. Y. 344, 103 N. E. 508.

in the middle of the stream, it doubtless is true that sometimes a monument located on the side of a stream does not prevent a bound[2] It seems to me quite plain that the ary thereby marked from extending in or to town of Westchester in its conveyance of the center of the stream. Fulton L., H. & P. parcel No. 234 did thus definitely make the Co. v. State of N. Y., supra, 200 N. Y. 416, bank of the creek the boundary, and there- 417, 94 N. E. 199, 37 L. R. A. (N. S.) 307. fore that there could be no extension of Likewise standing by itself the next course title by interpretation to the center of the "running along said Westchester creek" might stream, even in the case of a private grantor. be located in the center of the stream. But The map of the damage parcels, the evi- the following courses to the angle formed by dence, and the briefs of counsel make it plain the slip are "by and with Westchester creek that in the locality in question there was a and a certain stone wall," and "along by said wall extending along the bank both of the Westchester creek and by said wall," and creek proper and of the slip to the angle these courses fixed in part by the wall conformed by the junction of these streams. cededly standing on the bank of the creek There was also a causeway continuing an can only be run on such bank where the wall ancient road across the creek proper at a stands and cannot by any reasonable interpoint immediately north of parcel 234. With pretation be located in the center of the these facts in mind we pass to a considera-stream. Not only are these last courses by tion of the description of parcel No. 234 in the conveyance by the town of Westchester, under which petitioner claims in behalf of the grantee Mr. Ryan. This description runs as follows:

"Beginning at a point on the road leading from Westchester village to Throggs Neck at a marked stone thence running north eighty degrees and forty-five minutes east (N. 80° 45' E.) along the said road or causeway (so called) fiftyfive and one-half feet (552 ft.) to a point on said causeway or road, thence running north eighty-five degrees and thirty minutes east (N. 85° 30′ E.) forty-six and one-half feet (462 ft.) to a point marked on the causeway by Westchester creek, thence running along said Westchester creek south four degrees and forty-five minutes east (S. 4° 45′ E.) twenty-four and onequarter feet (244 ft.); thence by and with Westchester creek and a certain stone wall sixteen and one-half feet (162 ft.) thence still along by said Westchester creek and by said wall south forty-four degrees E. (S. 44° E.) thirty-nine and one-quarter feet (394 ft.) to a slip, thence by and with said slip south eightyfive degrees and thirty minutes west (S. 85° 30 W.) thirty feet (30 ft.), thence south sixtyseven and one-half degrees west eighteen and one-half feet (S. 672 W. 18% ft.) to a turn in the wall of the aforesaid mentioned slip, thence still along by said wall south eighty-five and one-half degrees west (S. 85% W.) fifty feet (50 ft.) to the first above-mentioned road leading from the town dock thence along the easterly side of said road north six degrees east sixty-six feet (N. 60° E. 66 ft.) to a marked stone the point and place of beginning containing within said bounds fourteen hundredths of an acre (14/100)."

The courses which establish the boundaries of this parcel No. 234 on or in connection with Westchester creek commence at "a point marked on the causeway by Westchester creek," and run thence toward the angle formed by the creek and slip, and thence by

such reference to the wall themselves located along said bank, but by fair implication they result in locating the preceding and first course of the same boundary line on such bank rather than in the center of the creek. While, as has been said, the starting point and the first course considered by themselves might find a justifiable location in the center of the creek, it is not to be assumed that a grantor, in running the boundary line on one side of a parcel which he was conveying without some special reason would locate one part of such line in the center of the stream and the balance of it on the bank. Moreover, as indicated by the damage map, even if such a process had been pursued, the last courses referred to would be moved to the bank of the stream in time to exclude parcel 235; that being the one lying in the main channel of the creek.

In like manner, when we turn the angle formed by the creek and slip and follow the boundary line extended along the latter, we find terms of description which in my judg ment fix the boundary on that side of the premises on the bank rather than in the center of the stream. The first course after leaving the angle is "by and with said slip," and which by itself might mean the center of the slip. Then follow the remaining courses "to a turn in the wall of the aforementioned slip; thence still along by said wall.” seems to me that the course which runs to a "turn in the wall," and thence "still along by said wall," fairly implies that the preceding course, indefinite perhaps by its own terms, was run along said wall. The boundary could not continue "still" to follow said wall, unless

It