1 FOURTH DEPARTMENT, JUNE TERM, 1896. [Vol. 8. warrant a conviction. Here there is but very slight evidence tending to show that the lake or pond was used or intended to be used for propagating fish, whilst there is no evidence whatever of any act done for the propagation of wild birds or game, or for their protection and preservation. The public declaration and notice of the owners that they devoted the lands and waters for both these purposes is false as to both. Appellant also contends that even though the proprietors of this pond had actually devoted and used the waters for the primary purpose of propagating and protecting fish, they could not claim protection for it as a private pond under the provisions of the statute; that to bring the case within the statute, the whole of the pond must be so far private property as to confine therein the fish with which it is stocked; that the ownership of a part only of the land covered by the water is not sufficient to give to the whole water the distinctive character of private; that the question is not whether the complainants have rights which may be trespassed upon, but is the whole body of water private within the meaning of the statute. It is argued that the complainants must show exclusive right to fish in these waters, and this they did not have, because it appears that in time of high water there are several persons owning land in the vicinity who have the right to fish therein. Then, again, a portion of the waters of this pond enter into the cove owned by one Hammond. That the nature of this body of water is such that the idea of propagating and protecting fish is entirely out of the question, because at time of high water the identity of the lake is lost and it becomes a part of the river. There is much to be said in favor of this contention (see Reynolds v. Commonwealth, supra; Benscoter v. Long, supra, and Hill v. Bishop, 17 N. Y. Supp. 297; 43 N. Y. St. Repr. 736), but it is unnecessary for the decision of this appeal to determine the matter. Nor are we called upon to determine whether, under the provisions of the statute, this property could be devoted and used as a private park or territory for the propagation and protection of wild birds and game, for there is no evidence that it was used for any such purpose or for the propagation of fish subsequent to the publication of the declaration and notice. Assuming that the conviction was legal and proper, the judgment App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1896. is clearly erroneous. The judgment imposes a fine of ten dollars. and costs, amounting to twenty dollars and ninety-one cents, and directs that the defendant "stand committed until the same be paid, not exceeding thirty days." Such a judgment plainly violates the provisions of section 245 of the statute quoted above. Judgment reversed, and defendant discharged. HARDIN, P. J., and FOLLETT, J., concurred; ADAMS and WARD, JJ., concurred in result. Judgment reversed, and defendant discharged. EDWIN H. HEWETT, as Administrator, etc., of MARY HEWETT, Deceased, Respondent, v. JOHN CHADWICK, Appellant, Impleaded with Others. Complaint - an allegation that the plaintiff is an administrator, not contested nor proved on the trial, may be proved by the record upon appeal — interest after default is in the nature of damages. In an action brought by an administrator, the allegation as to his appointment as such was put in issue by the answer, and no proof of his appointment was given on the trial, nor was any question raised in respect thereto. Held, that it was competent for the plaintiff and respondent, on an appeal from a judgment in his favor, to file with the appellate court a certified copy of the decree appointing him administrator, and that this would support the judgment in respect to that allegation. Where the principal is not paid when due, according to the terms of a mortgage, interest after its maturity is recoverable as damages, and at the rate fixed by law, and not at that designated in the mortgage. APPEAL by the defendant, John Chadwick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 16th day of April, 1895, upon the report of a referee. W. B. Simson, for the appellant. P. M. Sullivan, for the respondent. GREEN, J.: FOURTH DEPARTMENT, JUNE TERM, 1896. [Vol. 8. This action was begun October 30, 1894, to foreclose a mortgage on real estate, and the complaint contains the usual allegations in such cases. It is alleged in the complaint that the mortgage was originally given to Edwin H. Hewett, and that he assigned it to Mary Hewett, who thereafter died, and that December 24, 1892, the plaintiff was appointed the administrator of her estate. The defendant by his answer alleges that he has not sufficient knowledge, as to whether the plaintiff was so appointed, to form a belief, and alleges as an affirmative defense that the mortgage has been paid. The only issue tried before the referee was the one of payment, which was found in favor of the plaintiff upon evidence sufficient to sustain the finding. No question seems to have been raised on the trial over the appointment of the plaintiff as administrator, and we find no evidence in the record that he was so appointed; but the plaintiff having filed with this court a certified copy of the decree appointing him administrator, as it is permissible to do to sustain a judgment (Baylies N. T. & App. 161), it is sufficient. The referee has, however, committed an error either in the computation of interest or in computing the same contrary to the rule fixing the rate per cent allowable under the evidence in this case. The mortgage bears date September 17, 1874. By its provisions interest was to be paid semi-annually upon all unpaid sums to the time of each payment. No rate of interest was expressed in the mortgage; it became due by its terms March 17, 1875. The referee has evidently computed interest at the rate of seven per cent per annum to the the date of his report. The principal was not paid when due according to the terms of the contract. The contract was violated and the interest after that upon the amount unpaid could only be recovered as damages, and at the rate of interest allowed by law. The rate of interest was, on the 1st day of January, 1880, reduced to six per cent, and from that date plaintiff was entitled to interest at that rate and not at the higher rate prevailing at the date of the contract. Adopting this rule in the computation of interest, we find that the amount of principal and interest due and unpaid upon this mortgage at the date of referee's report was the sum of $737.79. App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1896. The judgment herein should be modified, by decreeing that the amount due the plaintiff is the sum of $737.79, instead of the sum of $913.21; and as so modified, judgment is affirmed. All concurred. Judgment modified by reducing the judgment and report to $737.79, and as modified affirmed, without costs. ALFRED M. DOUGLASS, as Executor, etc., of DANIEL A. HAZEN, Deceased, Appellant, v. SALLY MARIA HAZEN, Respondent. Will — permission given to a life tenant "to draw from the real estate" — rights of the life tenant thereunder. The will of a testator gave all his personal estate to his widow, to have and to hold during her life, to be subject to her disposal by will or otherwise at her death, and further provided: “And should it be necessary for her comfort to draw from the real estate, she is authorized to do so. The real estate I give and bequeath to my friend Alfred M. Douglass, that is, what may remain after the death of my said wife Sally Maria." Held, that the wife alone was to determine as to the necessity of using the real estate, and that the remainderman could not control her decision. APPEAL by the plaintiff, Alfred M. Douglass, as executor, etc., of Daniel A. Hazen, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 30th day of September, 1895, upon the decision of the court rendered after a trial at the Chautauqua Special Term. This action was brought to obtain a construction of the will of Daniel Hazen, which was as follows: "IN THE NAME OF GOD, AMEN, I, Daniel A. Hazen, of the town of Mina, county of Chautauqua and State of New York, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do, therefore, make, ordain, publish and declare this to be my last Will and Testament, that is to say: "First. After my lawful debts are paid and discharged, I give and bequeath to my wife Sally Maria Hazen all of my personal APP. DIV.-VOL. VIII. 4 FOURTH DEPARTMENT, JUNE TERM, 1896. [Vol. 8. property, to have and to hold for her sole use, for and during the term of her natural life, and to be subject to her disposal by will or otherwise at her death. And should it be necessary for her comfort to draw from the real estate, she is authorized to do so. "Second. The real estate, I give and bequeath to my friend Alfred M. Douglass, that is, what may remain after the death of my said wife Sally Maria. And it is my request that the said Alfred M. Douglass shall cause to be placed at the grave of my said wife and myself, suitable and proper gravestones, or one, suitable and proper for both graves, with proper and appropriate inscriptions thereon. "Likewise, I make, constitute and appoint my wife Sally Maria Hazen and Alfred M. Douglass to be executrix and executor of this my last Will and Testainent, hereby revoking all former Wills by me made." Van Dusen & Martin, for the appellant. Ottaway & Munson, for the respondent. Judgment affirmed on the opinion of SPRING, J., delivered at Special Term, with costs against the appellant personally. All concurred. The following is the opinion of SPRING, J.: SPRING, J..: Daniel Hazen was the owner of a small farm in the town of Mina, in the county of Chautauqua. He died in 1887, leaving the defendant, who had been his life companion for nearly fifty years, and no descendants. He made his will, which was admitted to probate, and the plaintiff, who was a neighbor of the testator, and the defendant were named as executors. The plaintiff assumed to have a right to the immediate occupancy of this little farm and promptly took possession of it, exercising control over it to the exclusion of defendant. That continued for the period of six years, when the defendant succeeded in acquiring control of the farm, and plaintiff brought this action for the purpose of obtaining a judicial construction of the will, and in assertion of his right to the possession and control of the real estate of which the decedent died seized. The will |