#### The People of the State of New York, Respondent, *v.*John Morrison and Warren Francisco, Appellants.

Second Department,

January 24, 1908.

Crime — larceny by taking shellfish—notice of private ownership — municipal corporation — power to lease oyster beds in' Jamaica bay — existence of lease immaterial in prosecution for larceny.

Shellfish planted under public waters where they do . not grow naturally, and where they cannot lose their identity hy becoming mixed with those local to the place, are a subject of conversion and larceny. But to constitute larceny the person taking'them must have notice of their private ownership.’

A defendant is chargeable with such notice when .the bed is inclosed by stakes or-otherwise.

The authority of the supervisor and justice of the peace of the town of Flat-lands to give exclusive leases to the inhabitants of said town for planting shellfish in the waters of Jamaica bay except in natural beds, as conferred by chapter 734 of the Laws of .1868; passed to the city of Mew York when the town was incorporated therein.

Although the prosecutor is permitted to give oral testimony that he had such lease, instead of producing the written instrument, the error is harmless, for the larceny does not depend upon the existence of the lease, it being unlawful in any event knowingly to take the prosecutor’s clams.

*11For the same reason it is not error to exclude Colonial patents offered by the defendant to show that the title to the lands in question wa's in the town.

Neither is it material-that a lease from the State was-void, because of. lack of jurisdiction in the officers granting the same, the question of larceny not depending on a lease.

Appeal by the defendants, John Morrison and another, from a judgment of the Court of Special Sessions of the Second Division of 'the city of New York, rendered on the 11th day of June, 1906, convicting the defendants of the crime of petit larceny.

*Martin T. Mamton [George B. MeCartie, Jr.,*with him on the brief]* for the appellants. *<*

*Peter P. Smith*[ *John F. Glarhe*with him oh the brief], for the respondent.

G-aynoe, J.:

The defendants were convicted in the borough of Brooklyn in the court of" special sessions of petit larceny for stealing clams in that part of Jamaica bay adjacent to that part of the said borough which was formerly the town of Flatlands. The prosecutor had planted clams in a bed to grow and mature, and he accused the defendants of stealing them.- There was sufficient evidence for the trial court to find that no natural clams grew at that place.

The law is long settled that shell fish planted under public waters where they do not grow naturally, and where therefore they cannot lose their identity by becoming mixed with those local to the place, are. the subject of conversion and larceny. But the person taking them must have notice of their private ownership to make such taking larceny. This notice is usually given by enclosing the bed in which they are planted by stakes or otherwise *(People*v. *Wanzer,*43 Misc. Rep. 136, and cases there collected; and see *Vroom*v. *Tilly,*184 N. Y. 168). There was sufficient evidence for the trial court to find that the prosecutor’s bed was so enclosed.

Chapter-J34 of the Laws of 1868 authorized the supervisor and justice of the peace of the town of Flatlands to give exclusive leases in writing to inhabitants of the town for the planting of shell fish in the waters of Jamaica bay mentioned above, except in natural beds, and that authority passed to the city of New Fork when the said town became a part of the said city. But the ques*12tion of larceny did not depend on the existence of' snch a lease. Even though the prosecutor liad no lease, it was unlawful to knowingly take his clams. Having once reclaimed them, he did *not*make them *feres natures*again by planting them in a bed sufficiently enclosed to mark them as private property, and in which there was no natural growth of clams, as we have already seen. The oral testimony of the prosecutor that he had a written lease from the city, and - also another from the state, was therefore irrelevánt and harmless. It follows that, the- exception to allowing oral evidence to prove such leases instead of the lease.being produced,- presents only an immaterial error. The same is the case in respect of the exception to the exclusion of the colonial patents offered by the defendants to show that the title to the portion of the said hay already mentioned was in the said town. That was an immaterial fact. Whether title was in the state or in the town, the prosecutor’s clams were the subject- of larceny. That the lease from the state was void for the reason that the state officials have no jurisdiction to grant the like *(Denton*v. Bennett, 102 App. Div. 454), does not matter, as the question of larceny did not depend on a lease.

The judgment should be affirmed.

Woodward, Jenics, High and Hiller, JJ., .concurred.

Judgment of the Court of Special Sessions affirmed.