Opinion of the Court, per RAPALLO, J.

not be and is not claimed that such an action could be maintained without a valid judgment and execution against the corporation or its successors, or without first exhausting the creditor's remedies against the property remaining in the hands of the corporation, or received by its trustees on its dissolution. It clearly appears by the findings that more than sufficient to pay the plaintiff's claim was possessed by the corporation at the time of its dissolution.

The effort is made, however, to sustain the recovery at Special Term, on the ground that the defendants are liable under the statute of New Jersey, as trustees of the dissolved corporation.

It is difficult to see how this action can be maintained on that ground. The complaint contains no allegation appropriate to such an action, nor does it state the facts necessary to constitute such a cause of action. It neither states that the company ever was dissolved, nor that the defendants, or any of them, were directors at the time of the dissolution. It is founded wholly on the judgment and execution, and the right to proceed in equity to compel satisfaction out of property of the corporation which came to the hands of the defendants during its existence. Neither are the facts proved sufficient. The only evidence that the plaintiff's testator ever was a creditor is the alleged judgment. This, as has been shown, was null and void. The facts show that the defendant Vanderbilt was not a director, and had ceased to be such for nearly five years before the dissolution. I can see no right of recovery against him in any form of action on the facts proved or found. The plaintiff had an ample remedy by continuing his action against those directors who continued such at the time of the dissolution as trustees, to follow the property of the corporation into their hands, and after having exhausted that, to resort to any stockholder who had at any time received any portion of the company's funds in excess of lawful dividends. But in this action I can see no ground of recovery against the respondent.

A majority of the court, however, are of opinion that a

Statement of case.

new trial should be granted, so as to afford the parties an opportunity to apply to the court below for an amendment of the pleadings, and varying the facts by further proof, and therefore the judgment below must be so modified as to grant a new trial, and as modified affirmed, costs to abide the event. All concur except MILLER, J., who dissents and votes for reversal of judgment of General Term. and affirmance of Special Term; ALLEN, J., absent.

Judgment modified in accordance with opinion.

THE PEOPLE ex rel. AUGUSTUS T. MORRIS et al., Appellants, V. THE BOARD OF SUPERVISORS OF RICHMOND COUNTY, Respondent.

Under the compact made in 1833 between this State and New Jersey, fixing the boundary line between the two States, by which the boundary south of Staten Island is defined as a line passing through the middle of the waters "of Raritan bay to the main sea," the whole body of water from the mouth of the Raritan river to the ocean, including what is now known as the Lower bay and Raritan bay was designated as "Raritan bay." The middle of Raritan bay, as thus designated, where it joins the main ocean, is the center of a line from Sandy Hook to Coney Island; at any other point it is the shortest line between the New Jersey coast and Staten Island.

Accordingly held, where a vessel was sunk in the waters of the Lower bay, at a point 1,080 feet southerly of the center of a line drawn from the northerly end of Sandy Hook, the nearest land on the New Jersey shore, to the nearest land on the Staten Island shore, that the wreck was within the territorial limits of New Jersey; and that the expense of removing the same was not chargeable upon the county of Richmond, under the act of 1860 (chap. 522, Laws of 1860), providing for the removal of obstructions to navigation in the harbor of New York.

(Argued March 28, 1878; decided April 23, 1878.)

APPEAL from order of the General Term of the Supreme Court in the second judicial department, reversing a judg ment in favor of relators, entered upon the report of a SICKELS.-VOL. XXVIII. 50

Opinion of the Court, per ANDREWS, J.

referee directing the issuing of a peremptory mandamus, requiring defendant to audit, allow and pay to relators, the amount agreed to be paid to them under and by a contract. between them and the pilot commissioners of the port of New York, for removing a sunken vessel from the Lower bay. The further facts appear sufficiently in the opinion.

Richard H. Huntley, for appellants. The wreck was within the jurisdiction of the county of Richmond, and the expense of the removal was properly chargeable on that county. (1 R. S. [6th ed.], 124 [m. p.], 65; People v. Cent. R. R. Co. of N. J., 42 N. Y., 283, 292, 312, 313.)

Tompkins Westervelt, for respondent. The wreck was not within the limits of Richmond county but within the territorial limits of New Jersey. (1 R. S., part 1, chap. 11, § 2, subd. 4; Laws 1834, p. 9.)

ANDREWS, J. The expense incurred by the board of commissioners of pilots, in the removal of a sunken vessel or other obstruction to the navigation of the waters or harbor of New York, is by chapter 522 of the Laws of 1860 made a charge upon the county within whose jurisdiction such vessel or obstruction may be.

The principal question in this case is whether the locality of the wreck, the expense of removing which is the subject of this action, was within the territorial limits of the county of Richmond. There is no dispute as to the precise point where the wreck lay. That point was in the waters of the lower bay, between Staten Island and New Jersey — near the westerly limits of the main ship channel, and northwesterly from the northerly end of Sandy Hook, the nearest land on the New Jersey shore, and ten hundred and eighty feet southerly of the centre of a line passing through the locality of the wreck, connecting Sandy Hook with the nearest land on the Staten Island shore.

The county of Richmond is declared by statute to contain

Opinion of the Court, per ANDREWS, J.

Staten Island, Shelter Island, and the Islands of Meadow on the west side of Staten Island, "and all the waters and lands under water of this State around the same, situate to the southward and westward of the main channel of the bay and harbor of New York, as far as the bounds of this State extend." (1 Rev. Stat., part 1, chap. 1, sec. 2, sub. 4.) By this description the middle of the main channel is the eastern boundary of the county; but the southern boundary is left. undefined, except by reference to the boundary of the State with which it is made coincident. To determine what waters between Staten Island and New Jersey are within the territorial limits of the county, the boundary of the State between Staten Island and New Jersey must be ascertained.

The boundary of the State at this point was defined in the Revised Statutes as extending from a designated point on the west side of Hudson's river "southerly along the west shore, at low-water mark of Hudson's river, of the kill Van Kull, of the sound between Staten Island and New Jersey, and of Raritan bay to Sandy Hook, and then to the place of beginning, in such manner as to include Staten Island, etc., and all the islands and waters in the bay of New York, and within the bounds above described." (1 Rev. Stat., part 1, chap. 1, title 1, sec. 1.)

This description includes all the waters between Staten Island and low-water mark on the New Jersey shore, and as the wreck was within these waters there could be no question that the locality was within the limits of Richmond. county, except for the change in the boundary line between. New York and New Jersey made by the treaty or compact, entered into between commissioners appointed by the respective States in 1833, and subsequently ratified by the legis latures of the two States and by Congress. The first article of the compact is as follows: "Article first. The boundary line between the two States of New York and New Jersey, from a point in the middle of Hudson river, opposite the point on the west shore thereof, in the forty-first degree of north latitude, as heretofore ascertained and marked, to the

Opinion of the Court, per ANDREWS, J.

main sea, shall be the middle of the said river, of the bay of New York, of the waters between Staten Island and New Jersey, and of Raritan bay to the main sea, except as hereinafter otherwise particularly mentioned." The exception has no bearing upon the question here, and may be left out of view. The line defined by this article extends eastwardly to the "main sea." (Chap. 8, Laws of 1834.) The learned referee assumed and the counsel for both parties acquiesced in the view that this treaty was intended to define the entire boundary between the two States, and that the words "main sea" were intended to designate that part of the sea flowing outside of Sandy Hook, as distinguished from that part included within Sandy Hook and Coney Island, constituting what is known as the waters of the bay and harbor of New York. The common law definition of the main sea was that part of the sea lying outside of the terræ fauces or points on the opposite shore sufficiently near to enable persons standing on one shore to distinctly see and discern with the naked eye what is doing on the opposite shore. The water within the terræ fauces, although properly called the sea or an arm of the sea, is not the main sea within the common law definition. (Fitz. Abridg. Corone., 399; 8 Edw., 2; De Jure Maris. Harg. Tracts, ch. 4, p. 10; 2 East P. C., ch. 17, § 10, p. 804; U. S. v. Grush, 5 Mason, 290.)

The definition of the main sea seems to have been made by the common law judges in construing the ancient statutes (13 Rich. II., chap. 5, and 15 id., chap. 3), the first of which enacts: "That the admirals and their deputies shall not meddle from henceforth with anything done within the realm, but only such things done upon the sea," and the second: "That of all manner of contracts, pleas, etc., and of all other things done or arising within the bodies of the counties, as well by land as by water, etc., the admiral's court shall have no manner of cognizance, power nor jurisdiction," etc.

The boundaries of the counties in England were not defined by statute, and the common law courts in construing these statutes (13 and 15 Rich. II.), held, that such boundaries