App. Div.] Second Department, May, 1908. referee to ascertain and report to the Court the amount of any damage so sustained by the plaintiffs, or either of them." John Brooks Leavitt [Stuart G. Gibboney and Albert H. Atterbury with him on the brief], for the plaintiffs. William J. Martin [Lawrence W. Widdecombe with him on the brief], for the defendant. RICH, J.: The plaintiffs appeal from so much of the interlocutory judgment entered on the report of the referee as adjudges that they are not entitled to an injunction against acts of the defendant preventing the passage of the public over that portion of its beach lying between high and low-water mark, and the defendant appeals from so much of said judgment as grants to the plaintiffs any relief, and appoints a referee to ascertain and report the damages sustained by the plaintiffs, or either of them. The question here presented by plaintiffs' appeal is that of the right of the general public to use the land between high and lowwater mark, on the shores of lower New York bay, as a highway, and is not at all analogous to the rights of the owners of the upland to use such portion of the beach for the purpose of gaining access to the waters opposite their land or to such portion of said waters as is navigable, by means of a pier or dock, which is the subject of decision in many of the cases to which our attention is directed. The common law of England upon this subject was clearly defined as late as 1904 in Brinckman v. Matley (L. R., 2 Ch. Div. 313 [1904]; affd. on appeal, id. p. 321), as follows: "By the common law all the King's subjects have in general a right of passage over the sea with vessels for the purposes of navigation and have, primâ facie, a common of fishery there, and they have the same rights over that portion of the sea which lies over the foreshore at the times when the foreshore is covered with water. But when the sea recedes and the foreshore becomes dry there is not, as I understand the law, any general common-law right in the public to pass over the foreshore." The legal right of the owner of the upland to exclude the public from the use of the dry land lying between high and low-water mark has been maintained by our courts in Nolan v. Rockaway Park Imp. Co. (76 Hun, 458); Town of Brookhaven v. Second Department, May, 1908. [Vol. 126. Smith (188 N. Y. 74); Rumsey v. N. Y. & N. E. R. R. Co. (133 id. 79); Matter of City of New York (168 id. 134); Wetmore v. Atlantic White Lead Co. (37 Barb. 70); Whittaker v. Burhans (62 id. 237); Ledyard v. Ten Eyck (36 id. 102); Sisson v. Cummings (35 Hun, 22). Although the last cited case was reversed (106 N. Y. 56), it was upon a preliminary question, and the principle therein decided as applicable to the case at bar was not disturbed. It is said in Farnham on Waters (p. 656): "The shore of the sea below high water mark, whether the title is in the public or in the riparian owner, is not a highway for public travel upon foot or with vehicles." The defendant is a riparian owner, in which the title to the land occupied by its pier in front of its upland and under water, is vested by letters patent from the People of the State of New York. But it is contended that because of the condition contained in said letters patent that it should not obstruct the passage of the public in crossing or recrossing the land between high and low-water mark this action to preserve to the general public the right to use the land lying between high and low-water mark as a highway for travel along the shores of the bay is maintainable. While this view may seem to be warranted by the broad language of the grant, we do not think that it was intended to reserve to the public a right it did not possess and was not, as against the defendant, entitled to. If the construction contended for should prevail, the State, as trustee for the public, would have the right, without compensation to the riparian owners, to construct a highway upon and over the land upon the beach lying between high and low-water mark, which the Court of Appeals in Matter of City of New York (supra) expressly held could not be done. It is unnecessary, however, to give further consideration to this question as the action is not brought by the People to preserve and enforce their rights in the beach, but by adjoining riparian owners to prevent the defendant from obstructing the access of persons from the defendant's place of amusement to that of the plaintiffs, and for damages. It is well settled that such an action may be maintained by the State alone. (Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382, 388; Archibald v. N. Y. C. & H. R. R. R. Co., App. Div.] Second Department, May, 1908. 157 id. 574; White v. Nassau Trust Co., 168 id. 149; Saunders v. N. Y. C. & H. R. R. R. Co., 144 id. 75; New York Central & H. R. R. R. Co. v. Aldridge, 135 id. 83; City of Brooklyn v. Mackay, 13 App. Div. 105.) It is not shown that the defendant's pier in any manner interferes with navigation or with the use by the public, for any authorized purpose, of the waters of the bay so that it is not a nuisance. (Delaware & Hudson Canal Co. v. Lawrence, 2 Hun, 163; affd., 56 N. Y. 612; Jenks v. Miller, 14 App. Div. 480; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44 ; People ex rel. Howell v. Jessup, 160 id. 249; Kerr v. West Shore R. R. Co., 127 id. 269.) The defendant's contention upon its appeal is without merit. The learned referee has found upon sufficient evidence that it has constructed some of its buildings in a public highway, preventing its use by the public at the places of such encroachment, as the result of which plaintiffs have sustained special damages in the loss of patronage at their summer resort, together with the discharge of sewage upon plaintiffs' premises, which entitle them to the relief granted by the interlocutory judgment. The exceptions present no reversible error, and the interlocutory judgment must be affirmed, without costs to either party. WOODWARD, JENKS and GAYNOR, JJ., concurred; HOOLER, J., concurred in result. Interlocutory judgment affirmed, without costs. In the Matter of the Estate of ELIZA A. BAIRD, Deceased. GEORGE R. CONKLIN, as Executor, etc., of ELIZA A. BAIRD, Deceased, Appellant; THOMAS BAIRD, Respondent. Second Department, May 1, 1908. Executor section 2713, Code of Civil Procedure articles construction of statutes. money in lieu of The widower of a testatrix cannot receive an allowance of money in lieu of the articles specified in subdivisions 1, 2 and 4 of section 2713 of the Code of Civil Procedure where the articles named are not part of the estate. Second Department, May, 1908. [Vol. 126. The executor is not estopped by the filing of his inventory containing such an allowance where it was inserted by the appraisers without his knowledge or consent. Where an executor offered to deliver the specific articles set apart for a widower, but refused to pay such allowance, the costs and disbursements of the widower should not be allowed. Where the Legislature in a later statute uses the terms of a prior one which has received judicial construction, it adopts the prior judicial construction. APPEAL by George R. Conklin, as executor, etc., from certain parts of a decree of the Surrogate's Court of the county of Kings, entered in the said Surrogate's Court on the 30th day of November, 1907. Lewis R. Conklin, for the appellant. Fred L. Gross, for the respondent. RICH, J.: On March 11, 1907, Eliza A. Baird died in Kings county, testate, leaving her surviving Thomas Baird, her husband, and no children or descendants; her last will, and codicil thereto, were duly admitted to probate on June 24, 1907, and letters testamentary issued to George R. Conklin, the appellant herein, who duly qualified, and, aided by appraisers, prepared an inventory in duplicate (one of which he filed in the surrogate's office as required by law), showing a personal estate of $5,105.34, consisting almost entirely of cash. The deceased left no real estate, and the only personal property owned by her at the time of her death, of the kind specified in section 2713 of the Code of Civil Procedure, was four photographs, part of a box of books and pictures, one-half dozen knives and forks and one butter knife, which articles the appraisers set apart for the husband. They then included in the inventory, without the knowledge or consent of the executor, the following clause: “In lieu of the articles mentioned in subdivisions 1, 2 and 4 of Section 2713, the appraisers in the exercise of their discretion set aside the sum of five hundred dollars ($500) in cash, to be paid to the widower by the executor." The appellant subsequently tendered the specific articles so set apart for the husband to him, and was at all times ready and willing to deliver the same. After demanding payment of said $500, the husband commenced this proceeding in the Surro App. Div.] Second Department, May, 1908. gate's Court, and the learned surrogate has made a decree directing the executor to set apart, deliver and pay to the respondent, first, the specific property set apart for him by the appraisers, and second, the $500 in cash, as an allowance and exemption awarded him by the appraisers in the filed inventory. Costs of $75.75 were allowed the respondent, to be paid out of the estate. From so much of the decree as requires the payment of the $500 cash and the costs this appeal is taken by the executor. It is first contended that the appellant is concluded and estopped by the filing of his inventory, and cannot, in this proceeding, question the validity or legality of the allowance stated therein to have been allowed the husband by the appraisers. If the subdivisions of section 2713, under the provisions of which the allowance was made, authorize the payment of money in lieu of the specific articles therein named, in a case like the one here presented, the executor is concluded by their act; but if, as contended, no such authority is given, the appraisers exceeded their power; their act was a nullity and did not bind the executor, who may raise the question and properly require its determination in any proceeding having for its purpose the enforcing of payment of the sum so awarded. The respondent relies upon the decision of this court in Matter of Williams (31 App. Div. 617), and later cases in Surrogates' Courts, the decisions in which are predicated upon the assumption that in the Williams case it was decided that when the estate of a decedent does not contain the specific articles enumerated in the different subdivisions of section 2713 of the Code, the court may properly make a money allowance representing, and equivalent to, their value, to sustain the decree under consideration. In Matter of Libolt (102 App. Div. 29) this court had occasion to consider the Williams case, and unanimously held that the only question therein presented was whether a widow, not a beneficiary under the will of her husband, was entitled to provisions and fuel for sixty days following the death of her husband, who owned no real property, under the provisions of subdivision 3 of section 2713, and that the court, upon resolving this question in favor of the widow the appraisers having failed to set apart for her use either fuel or provisions for the statutory period of sixty days, which had then elapsed might properly make her a reasonable allowance in |