
    Southard v. Wright, appellant.
    
      Statute construction—Laws 1871, chap. 639—grant of oyster teds.
    
    By Laws 1871, chap. 639, the board of town auditors of either Hempstead or Jamaica, Queens county, may grant «to residents of those towns the occupancy of lands under water, for oyster planting. By the statute the applicant is required to prove to the board, among other things, by five " freeholders,” that he is and has been for one year preceding an “ inhabitant of the town.” The proof is required to be taken in writing, and signed and sworn to, whereupon the board may grant permission to occupy; the certificate of which, and the depositions, are directed to be filed in the town clerk’s office. Meld, in an action by one holding a certificate, for a penalty provided by the act for taking oysters without authority on lands granted, that the proof required by the act is common-law proof. 6 How. 96. The witnesses of the facts should be produced before the board, sworn and examined ; and an affidavit taken before one of the justices who was one of the board did not give the board jurisdiction to grant the right of occupancy.
    Appeal from a judgment of Queens county court, affirming a judgment of a justice’s court against defendant for a penalty.
    
      Q. A. Mott and A. J. Spooner, for appellant.
    
      Alexander Hagner, for respondent.
   Barnard, P. J.

The action was for a penalty under a local act having application only to the towns of Jamaica and Hempstead, Queens county. The opinion is mostly devoted to a consideration of the-facts, and the head-note contains all that is believed to be of importance for publication.

Judgment reversed.  