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rily in a private conveyance voluntarily trusts his personal safety in the conveyanoe to the person in control of it. Voluntary entrance iuto a private conveyance adopts the conveyance, for the time being, as one's own, and assumes the risk of the skill and care of the persou guiding it. Pro hac vice, the master of a private yacht, or the driver of a private carriage, is accepted as agent by every person voluntarily committing himself to it. * * * There is a personal trust in such cases, which implies an agency."
The same rule of imputed negligence was asserted without any discussion of the subject in Houfe v. Town of Fulton, 29 Wis. 296, and again in Otrs v. Town of Janesville, 47 id. 422; S. C., 2 N. W. Rep. 783. The facts in the latter case are not so stated as to disolose how the plaintiff was related to the driver.
In Lake Shore & M. S. R. Co. y. Uliller, 25 Mich. 274, the Supreme Court of that State seems to sustain the same rule, but cites no authority, and discloses no reason for its conclusion. This was the case of one riding in a private conveyance. It may be questioned whether the weight to be given to this decision as authority upon the question under consideration may not be somewhat impaired by a later decision in the same court, to which we shall hereafter refer. It is to be observed however, and this may go to reconcile the two decisions, that in the case above cited the circumstances went strongly to show actual negligence on the part of the plaintiff as well as on the part of the driver. But while the doctrine of imputed contributory negligence, under circumstances similar to those presented in this case, is not without support, the weight of authority in this country is opposed to it; and the reasons which have been assigued for the rule and upon which it must be deemed to rest, cannot, we think, be sustained.
From the decisions to which we have referred it may be seen that the doctrine has been based either upon an unexplained “identity” of position between the plaintiff and the person by whose contributory negligence his right of action is affected, or else upon the ground that such person had been accepted as his ageut, so that the negligence of the latter is, in legal contemplation, the negligence of the plaintiff. It seems to us that neither of these theories can be sustained as affording a legal ground for the imputation to the plaintiff of the negligence of another over whose conduct the plaintiff veither bad nor exercised any authority or control, aud in whose conduct he in no manner participated. Since a recovery may be had against any of several wrong-doers whose concurrent acts have produced injury to the plaintiff, the liability of one such wrong-doer in an action against him is not avoided by the fact of the concurrent wrong of another, in respect to which the plaintiff is in no way in fault, and for which he is not responsible. We do not refer to cases recognized as being exceptional, where parties stand in peculiar relations to each other, such as that of parent aud child, guardian and ward. The theory af “identity" which may be taken as the ground of the decision in Thorogood v. Bryan, and other English cases, is bo rague and undefined, as applied to circumstances such as are here presented, where no relation like that of master aud servant or principal and agent actually exists, and where the plaintiff is not only without fault, so far as appears, but without authority, respecting the conduct of the driver, that it is difficult to understand what is meant by it; and the explanatory remarks of Baron Pollock, supra, do not solve the difficulty of reconciling such a theory with the principle of law which affords a remedy to one, who being himself without fault, is injured by the wrongful act of another. It is enough to say that this theory of identity bas little or no support in this country; that the decision in Thorogood v. Bryan
has not escaped criticism iu the English courts, and has been generally repudiated in America. 1 Smith Lead. Cas. (8th ed.) 505; The Milan, 5 L. T. (N. S.)590, aud cases hereafter cited.
In Pennsylvania, where the English rule was followed, the court refused to adopt the reason for the law assigned in Thorogood v. Bryan, but based its decision upon the ground of public policy (the accident occurring in a public conveyance). Lockhart v. Licha tenthaler, 46 Penn, St. 151.
Considering now the other theory, we are unable to perceive how the doctrine of agency can be applied to affect the plaintiff's right of action for a wrong by wbich he is injured, if in fact there be no agency actually existing not implied by law, and no authority attempted to be exercised. The agency which can thus affect the plaintiff must involve authority, actual or assumed, on the part of the plaintiff, over the con: duct of the driver, and in that business wherein the driver was negligent. There can be no imputation to the plaintiff of negligence in the conduct of another which he neither authorized, nor participated in, nor bad the right or power to control. We cannot accede to the proposition that the driver of a private carriage becomes, pro huc vice, an agent of the person riding with him, in any such sense as to make the vegligence of the former, in legal coutemplation, the negligence of the latter. In the language of Baron Pollock, supra, “that would sound like a strange proposition, which cannot be entirely sustained." In this case nothing is shown to “identify" the plaintiff with Kiefer, or to afford support for any theory of agency, except the fact that the plaintiff rode in his carriage at his invitation.
The same question here presented arose in Robinson v. New York Cent. & H. R. R. Co., 66 N. Y. 11, in which, in a well-considered opinion, it was held that the passenger in the buggy of another person was not affected by the negligence of the latter,
Again, in Dyer v. Erie Ry. Co., 71 N. Y. 228, in a like case, the same court denying the existence of a relation of agency under such ciroumstances, beld the negligence of the driver jo bar to an action against the other wrong-doer. To the same effect is Musterson v. N. Y. C. & H. R. R. Co., 84 N. Y. 247.
In a late case in the Supreme Court of the United States i Little v. Hackett, 6 Sup. Ct. Rep. 391), the plaintiff, riding in a hired hack, was injured by the concurrent negligence of the driver and of the defend. ant. The question was considered as turning upou the fact as to whether the driver was the servant of the passenger, and this not being deemed to be the case, it was held that the negligence of the driver was not imputable to the plaintiff, so as to affect his right of action against the defendant. The doctrine of Thorogood v. Bryan is decided to be indefensible.
Bennett v. New Jersey R. & T. Co., 36 N. J. Law, 225, was a case of injury suffered by a passenger in a horse. car from the conourrent negligence of the driver and of the defendant. This was held not to bar a recop. ery. The substance of the reasoning of the court wag that the right to control the couduct of the agent is the foundation of the doctrine that the master is affected by the negligent acts of his servant; that in reality there was no agency, and none could be imputed upon the theory of identity. See also N. Y., L. E. & W. R. Co. v. Steinbrenner, in the same State, 20 Rep. 598 (1885), where the plaintiff was a passenger in a hired hack.
In Cuddy v. Horn, 46 Micb, 596, the plaintiff's intestate was one of a number of boys whom a clergy man was taking on an excursion in a steam yacht, which he had chartered for the purpose. The boy was killed in a collision with another vessel, through the negligence of those in charge of both vessels. The
action was against the owners of both vessels. The under whom the defeudants claim were ever in the point that the boy was so identified with those in possession of the land or ever exercised any acts of charge of the yacht in which he was that his rights ownership over the same. But the plaiutiff claims were affected by their negligence is disposed of by the that his grantor was in the actual, open, notorious court by alluding to the fact that neither the boy nor possession of the laud by bis tenant in January, 1861, the clergyman had any authority respecting the mau- and hence that within the rule laid down in Brown v. agement of the vessel; the conrt saying: “Where a Valkening, 64 N. Y. 76, and other cases, there was conpersou can rightfully have no voice or control, he can- structive notice to Pi's grantee at that time of the not be held so identified with those in charge as to be prior unrecorded deed aud of the rights acquired thereconsidered a party to their negligence.” It was under. He also claims that for more than twenty further said: “The reason for holding a person rid- years before the land was taken by tbe city and the ing in a private conveyance identified with the driver awards made, he and those under whom he claims thereof, and therefore affected by the negligence of were in the actual possession of the land, claiming the latter, cannot fairly or justly be held applicable in under the conveyance from P., and hence that his cases like the present. In the case of a private co
con- title to the award was perfect on that account. The veyance, the driver is under the control and direc- persons who knew most about the facts relating tions of the passenger, and if not, the latter may well to the possession were at the trial of this action dead, decline to intrust his safety further in such convey- and hence the evidence as to such possession was not ance.” We here remark that the last clause recited is as certain and definite as could be desired. But it suggestive of a reason for holding the passenger to be was submitted to the jury under instructions as to the himself guilty of negligence, under some circumstan- | law which we must, in the absence ofthe charge or any ces, as if he consents to ride with a person known to exceptions thereto, assume to bave been proper and be reckless, or unskilful, but it suggests to our minds satisfactory, and their verdict in favor of the plaintiff no reason for imputing the negligence of the driver to must be regarded as conclusive so far as there was the passenger if in fact he is not himself personally any evidence upon which it could be based. To make chargeable with any imprudence, and in fact has no out the adverse possession in this case it was incumbauthority over the driver. The reasoning of the court ent upon the plaintiff to prove that the land was in this case is such as to oppose the doctrine of im- "usually cultivated or improved,” or that it was puted contributory negligence, where in fact the pas- “protected by a substantial inclosure.” 2 Rev. Stat. senger has no authority or control over the driver, 294; Code of Proc., 83; Code of Civil Proo., § 370. even though the conveyance be a private one.
Here without going partioularly into the evidence we In Transfer Co. v. Kelly, 36 Ohio St. 86, and Wabash, are satisfied that there was some evidence from which St. L. & P. Ry. Co. v. Shacklet, 105 III. 364, which were the jury could find that both of the conditions mencases of injury to passengers in public conveyances, tioned were satisfied during a period of more than the doctrine of Thorogood v. Bryan was repudiated. twenty years preceding the date of the awards, and This case is unlike one where two or more persons
that plaintiff's claim of ad verse possession was thereunite in the joint prosecution of a common purpose,
fore well fouuded. Without therefore determining under such circumstances that each may be deemed to
whether at the date of the second deed of P., to-wit, have authority to act for all, or so that•each has a January 29, 1861, plaintiff's grantor was in the open, right and bears a respousibility in respect to the con
notorious and actual possession of the land within the trol of the means or agencies employed. The con
meaning of the case of Brown v. Valkening and other trolling fact here is that the plaintiff did not partici- cases cited, we are of opinion that for the reasons pate is, and had no authority respecting the manage
stated the judgment should be affirmed. Oct. 5, 1886. ment of the vehicle; neither is there any claim that Paige v. Waring. Opinion by Earl, J. she was herself guilty of negligence. This being the
APPEAL-JURISDICTION OF COURT OF APPEALScase, we are unable to assign any legal principle in ac
CODE Cịv. Proc., SS 191, 1337- APPEAL FROM DECREE cordance with which the negligence of Kiefer can be
OF SURROGATE-CONFLICTING EVIDENCE ON ISSUE OF impated to her; and we think tbat the weight of au
FACT.-The Court of Appeals has such jurisdiction as thority in this country is opposed to it.
is designated and created by law, and no other. Such The order refusing a new trial must therefore be re
jurisdiction is subject (Code Civ. Proc., S 191) to vaversed.
rious limitations, exceptions and limitations, and is
further restricted by section 1337 of the Code, which NEW YORK COURT OF APPEALS ABSTRACT. declares that "a question of fact arising under con
flicting evidence cannot be determined upon such an ADVERSE POSSESSION—“OPEN AND NOTORIOUS."
appeal, unless where special provision for the deter. The action was brought to recover certain awards
mination thereof is made by law." Held, that the made to “unknown owners” for the taking of certain
amendment to section 1337 (L. 1883, ch. 229) did not land in the city of New York, for the opening of Mad
enlarge, or purport to enlarge, the appellate power of ison avenue, which awards were paid by the city to
this court, but only regulates such appeals as by existdefendants' testator upou his claim to be the owner of
ing laws were permitted. The decree of a surrogate the land. Both parties claim the land taken by title
rendered upon the trial of an issue of fact (in this case derived from P. His conveyance of the land in the
a testator did not execute a codicil to his will under chain of plaintiff's title was made June 21, 1827, and if
duress, fraud or receipt) is for the purposes of review that conveyance had been at once recorded, there is no
regarded as a judgment; and the determination of the dispute that plaintiff's title to the land and the awards
General Term on appeal therefrom, if there is any would have been perfect. But the infirmity in his
evidence upon which its decision may reasonably and title arises from the fact that that conveyance was not
fairly stand, concludes this court. Oct. 5, 1886. Hewrecorded until August 15, 1864. P.'s conveyance of
lett v. Elmer. the land in W.'8 chain of title was dated January 29, ASSESSMENT CONTRACT FREE FROM FRAUD" 1861, and recorded the next day. So that the defend- -ITEMS OF EXPENSE. — For the purposes of an asants bave the best record title, and if there were noth- sessment, for the construction of a sewer in New ing more, their title to the money awarded for the York city the certificate of the commissioners (act iand and paid to their testator would have been per- 1872, ch. 580) that the contract is " free from fraud" fect. There is no evideuce that any of the persons
is conclusive. Matter of Kendall, 85 N, Y. 302, where
they are fully stated, and in regard to surveyor's fees. upon the premises during the time he had the li. Matter of Merriam, 84 N. Y. 607; Matter of Pelton, 85
not if applied to the drinking of id. 651; Matter of Lowden, 89 id. 548, are against peti- liquor before September 6 or after May 1. But as it tioner. On the other hand the appeal by the corporation did not appear that any drinking took place before should succeed. The question presented by it relates the first or after the latter date, and defendant's counto the item of $1,206.53 awarded to the Manhattan sel failed to call the attention of the judge to the facts, Gas-light Company,” for the expense it may be (the and ask for a qualification of the charge, it must be contrary does not appear) of removing and relaying treated as if applied only to the period covered by detheir gas pipes in consequence of the construc- fendant's license. (2) A statute which provides that tion of the sewer in question, and in perform- upon proof being made of the fact that liquor was ance of a duty to do so imposed upon them by a seen to be drunk on the premises, that it was prima city ordinance. Revision of 1866, p. 243, § 16; of 1880, facie evidence that it was sold with the intent that it pp. 105, 106, SS 166, 17). The same ordinance declares should be drunk on the premises is constitutional. that all expenses or damage incurred or sustained by The general power of the Legislature to prescribe such company shall form a portion of the expenses of rules of evidence and methods of proof is undoubted. such sewer, and be assessed and collected in the same While the power has its constitutional limitations it is manner as the other expenses thereof. Its disallow- not easy to define precisely what they are. A law ance is not justified by our decision in Deering's case, which would practically shut out the evidence of a 93 N. Y. 361. The assessment then in question was party, and thus deny him the opportunity for a trial, for regulating and grading a street, and an item sim- would substantially deprive him of due process of law. ilar to that now under consideration was rejected, be- It would not be possible to uphold a law which made cause the occasion which required it was not within an act prima facie evidence of crime over which the the ordinances above referred to. It is otherwise party charged had no control, and with which be with the case now before us. If the item was for a had no connection, or which made that prima facie purpose different from that suggested, it was the duty evidence of crime which had no relation to a criminal of the petitioner to point it out, and establish an error act and no tendency whatever by itself to prove & if one existed. In re Eager, 46 N. Y. 109. It is not criminal act. But so long as the Legislature, in preeven alluded to in the petition, and the proof is only scribiug rules of evidence in either civil or criminal that such an item forms part of the general sum. cases, leaves a party a fair opportunity to make his Counsel for petitioner calls our attention to the Mat- defense and to submit all the facts to the jury, to be ter of Lilienthal, 28 Hun, 641, and to the Houghton weighed by them, upon evidence legitimately bearing case, 20 id. 395. Iu the first the opinion of the court upon them, it is difficult to perceive how its acts can be does not appear, and we have no means of knowing assailed upon constitutional grounds. Affidavitsi town the circumstances of the case or the view taken of bonding acts and tax deeds have been declared to be them. The other seems to have turned upon a pro- prima facie evidence of regularity and validity, and vision of the contract then in question. In the case numerous statutes of similar character are to be found before us the contract is not produced, nor is there in this and other States. In Commonwealth v. Wilevidence that it contains the provision on which re- liams, 6 Gray 1, it was held in a criminal prosecution liance was placed in the case cited. So far therefore for a violation of the excise law, that a statute which as the order of the General Term modifies the order provided that the delivering of any spirituous and inof the Special Term, it should be reversed, and the toxicating liquors in or from any building or place order of the Special Term affirmed, but in other re- other than a dwelling-house “shall be deemed prima spects the order of the General Term should be facie evidence of a sale, was constitutional and valid. affirmed, and the petition dismissed, with costs to the In State v. Husley, 54 Me. 562, it was held that an act oity of New York. Oct. 5, 1886. In re Petition of John- which provided that whenever an unlawful sale of in80n. Opinion by Danforth, J.
toxicating liquors“ is alleged, and a delivery proved, CONTEMPT-EXECUTOR ORDERED TO PAY MONEY it shall not be necessary to prove payment, but such Code, $ 2555-DISCRETION. The exercise of the power delivery shall be sufficient evidence of sale," was congiven by section 2555, Code of Civil Procedure, which stitutional. In Howard v. Moot, 64 N. Y. 261, Allen, provides that the decree of a Surrogate's Court, di- J., said: “ The rules of evidence are not an exception recting the payment of money, or requiring the per- to the doctrine that all rules and regulations affecting formance of any other act by an executor or adminis- remedies are at all times subject to modification and trator, when the decree relates to the fund or estate, control by the Legislature.
It may be conmay be enforced, if the executor or administrator re- ceded for all the purposes of this appeal, that a law fuses or willfully neglects to obey it, by punishing that should make evidence conclusive which was not him for a contempt of court, is discretionary with the so necessarily in and of itself, and thus precluded the court to which application is made, and when exer- adverse party from showing the truth, would be void, cised, is not reviewable in this court. Oct. 5, 1886. as indirectly working a confiscation of property or å Matter of Snyder. Opinion by Danforth, J.
destruction of vested rights. But such is not the effect EXCISE LAW-CHARGE OF COURT-CONSTITUTIONAL of declaring any circumstance or any evidence, howLAW-RULES OF EVIDENCE.--(1) Defendant had from ever slight, prima facie proof of a fact to be estabSeptember 6, 1880, to May 1, 1881, when it was re- lished, leaving the adverse party at liberty to rebut voked, a license to sell liquors, the not to be and overcome it by contradictory and better eridrunk upon the premises. In an action against him dence.” Here the fact, which is made prima facie for selling liquore *
without a license, the evi- evidence of an illegal sale, takes place upon the premdence of violations of the license by defendant by the ises of the person charged, has some relation to and sale of liquors to be drunk upon the premises was re- furnishes some evidence of the alleged illegal sale, and stricted to proof of sales limited to that period. The occurs in a place where liquors are authorized to be court charged the jury as follows: “The law provides kept and sold. To make drinking the liquor in such in such case as this that upon proof being made of the a place and under such circumstances prima facie erifact that liquor was seen to be drunk on the premises, dence of an illegal sale to the person drinking violates that is prima facie evidence that it was sold with in- no constitutional guaranty. It leares a party ample tent that it was to be drunk on the premises.” Ileld, opportunity to make his defense. It is specially prothat the charge was authorized if applied to drinking vided what is now the general law, that the party can
be a witness in his own behalf and thus it can never mised premises when the lease was executed, but as be difficult for him to show what the facts really are. to that afterward acquired and brought on to them. The burden of proof is not even really changed. The A similar agreement was examined in McCaffrey v. statute enables the prosecutor to make a prima facie Worden, 65 N. Y. 459, and a taking by the lessor of case by proof of the drinking. But the defendant can property not in existence where the lease was made, show the circumstances attending the drinking, his justified upon the ground that in substance it had in relation thereto, and any other facts tending to ab- equity all the characteristics of a mortgage, or of an solve him from liability, and then on the whole case, equitable lien, which for the purposes of that case was the burden still rests upon the prosecution to establish said to be its equivalent. There the adverse party was the alleged sale. The defendant has the full benefit of the lessee. That doctrine was applied in a similar jury trial and due process of law, and a full and fair action (Wisner v. Ocumpaugh, 71 N. Y. 113) against a opportunity, free from any undue hindrance or em- person whose relation to the demised premises prebarrassment, to make his justification and defense. cluded him from acquiring any rights adverse to those Hence the charge resting upon the statute was not er- of the lessor, and who therefore was in no better posironeous. But the statute need not be invoked to up- tion'than the lessee. Here the question was in equity, hold the charge. Under the circumstances of this case and is raised by the lessor agaiust an assignee for the the drinking was good common-law evidence of a sale benefit of the creditors of the lessee. In the cases in violation of the statute. The defendant kept liquor cited the lessor had obtained possession of the things for sale, and was shown to be engaged in selling it to in dispute, and the first decision turned upon the valbe drank upon his premises, quite indiscriminately to idity of the agreement as to non-existent property; persons calling for it. It is against all experience the other upon the priority of tbe plaintiff. So that he gave it away, or that persons came there
in Hale v. Omaha Nat. Bank, 49 N. Y. 626, there to drink liquor bought elsewhere. It was in his power
was an agreement for a future lien, and this was held to prevent the drinking which took place from glasses to be sufficient against a defendant who made no title presumably furnished by him. Evidence of the drink- to the property as purchaser, creditor or otherwise, ing under such circumstances was certainly prima
and had nothing but a naked possession tortiously acfacie proof that the liquor was bought to be drunk
quired. In other words, the defendant showed no there, and sufficient to justify the charge. Oct. 5, right to question the plaintiff's claim. Here the as1886. Com's of Excise v. Merchant. Opinion by
signment to the defendant is conceded to be valid, and Earl, J.
it is found that under it he had taken possession of
the property, and actually sold it without notice of the FRAUDULENT CONVEYANCE -- LEASE CONTAINING plaintiff's claim, or the agreement upon which the CLAUSE GIVING LIEN-TENANT REMAINING IN POSSES- claim was made; but notwithstavding all this, he bas SIUN — ASSIGNEE FOR CREDITORS MAY AVOID. – A still the avails of the property in his bands, and if the lease containing the following clause: “And it is fur- appellant is right in his contention that the defendther agreed that the lessor shall have a lien as security ant's position is not better than that of the lessee, the for all the rent and interest, gas bills and water rates plaintiff's lien will upon general principles of equity aforesaid, or for any damage to building, due from follow those proceeds. We cannot agree however on lessee, upon all goods, wares, chattels, implements, that contention. The defendant represents creditors, fixtures, tools and all other personal property, which and may treat as void all agreements made in fraud are to be put on the demised premises, belonging to of their rights. Laws of 1858, ch. 314. He has greater the lessee, or to any one holding or claiming the de- power for this purpose than the creditor himself. The mised premises, or any part thereof, under him as as- creditor can assert no right until by judgment aud signee, under-tenant or otherwise; and such lien may execution he has a lieu, or a right to a lien, upon the be enforced on the non-payment of any of said rent, specific property, but in favor of an assignee for his interest, water rent or tax bills by the taking of such benefit, the Legislature has substituted a statutory property and the sale thereof in the same manner as right in place of these conditions. Southard v. Benin case of a chattel mortgage on default thereof; such ner, 72 N. Y. 424. The defendant availed himself of sale to be made on six days' notice posted upon the de- this right, and upon the facts found by the trial judge mised premises, or served upon such lessee, such lien his actiou in so doing must be upheld. There was not however shall not be enforced against any property, only no delivery or change of possession of the things which being a part of the stock in trade, shall have covered by the agreement, but it was understood bebeen sold in the regular course of
” is in effect tween the parties that the should be neither. It a chattel mortgage, fraudulent as to creditors, and was therefore void both at common law (Twyne's void as to an assignee for the benefit of creditors. cuse, 3 Coke, 80) and by statute. 2 Rev. Stat. 136, 85. While rent was due and unpaid the tenant made a It is true, as the appellant says, the clause is not in exgeneral assignment of all his property, including that press terms characterized as a mortgage, nor are the upon the leased premises, for the benefit of his cred- words “sale,” “transfer,” or “assignment to be itors. On the same day, and without notice, actual found thereiss, but that does not matter. It takes efor constructive, of any claim on the part of the plain- fect as a mortgage, and the “lien as Recurity” is given tiff, the assignee took possession of the property, and by agreement, or to take the exact words, “it is" besoon thereafter sold and converted it into money,real- tween the parties “further agreed” to that effect. izing over and above expenses about $2,000. After- While its object may have been to give one creditor ward, but before the commencement of this action, priority over another creditor, it also involves a seplaintiff demanded of the assignee either payment of cret trust in favor of the owner of the goods, and the rent accrued and due, or delivery of the stock of forms the very cover of fraud which the statute congoods, fixtures and other personal property in the demns by declaring that “every assigument of goods store, to him as such lessee, claiming a right and lien and chattels by way of mortgage or security, or upon under said lease prior and superior to that of said any condition whatever,'' unaccompanied by delivery, Ellis under the assignment.” Held, that in this ac- “and followed by an actual and continued charge of tion to subject the proceeds of sale to the payment of possession, shall be presumed to be fraudulent as the rent due and unpaid the plaintiff could not re- against the creditors of the vendor.” Nor is it of any cover. It cannot be doubted that the agreement was, consequence when the debt provided for by the assignas between the lessor and lessee, good as a contract, ment was created, whether before or after the lease not only as to property in existeuce and on the de- was executed. It is enough that the relation of
debtor and creditor existed at some time whilst such cisive act of an intent oven to give or dedicate, and goods aud chattels remained in possession of the ven- the motion to dismiss the complaint should have been dor or assignor. 2 Rev. Stat. 136, $ 6. It is inconsistent granted. We are also of opinion that the action 8 not only with this statute, but with the principles of misconceived. It is in equity, and the ouly relief equity, that such a lien should be successfully set up sought is that the defendant be compelled to remove to the exclusion of bona fide creditors, and we are re- 80 much of her fence as she has already restored to ferred to no case where it has been done. The its former position and be restrained by injunction equity of the defendant as mere representa- from replacing the rest. The plaintiffs sue as como tive of creditors is at least equal to that of the missioners of bighways. The statute has defined their plaintiff, while the former has superadded to his duty and vested them with power to execute it. Upon equity the legal advantage of possession, and the stat- the plaintiffs' theory, the defendant has obstructed utory authority to treat as void a conveyance in fraud the highway. The statute prescribes the method of of the rights of creditors. In these respects his posi- procedure on their part. That she threatens still tion is better than that of the lessee, and equal to that further to obstruct it can give them no cause of aco of a creditor with judgment and execution. But the tion. If she executes the threat, they have in a learned counsel for the appellant argues that there proper case the power of summary removal of the was no evidence to sustain the eleventh finding: fence at her expense, but if the encroachment be desupra, viz., that showing a fraudulent arrangement at pied, the issue must go before a jury. 1 Rev. Stat., the time of the execution of the lease, and therefore tit. 1, p. 1, ch. 16, art. 5, as amended by Laws of 1878, that the provisions of the act of 1858, as to the powers ch. 245; Coykendall r. Durkee, 13 Hun, 260. Oct, 5, of assignees, are not brought into operation. Conced- | 1886. Rozell v. Andrews. Opiniou by Danforth, J. ing it to be valid between the parties, as we have done, MARRIAGE-RELEASE OF DOWER-CONVEYANCE DE. we think it fraudulent upon its face as to creditors, FEATED BY PARAMOUNT TITLE-DOWER RESTORED.and therefore void as to the plaintiff, their assignee. The joinder by a married woman with her husband in The lessee was a retail merchant. The lease in terms a deed or mortgage of his lands does not operate as to permits him to sell his stock in the regular course of her by way of passing an estate, but inures simply as business, and relieves so much of it from the lien. Ile a release to the grantee of the husband, of her future in fact carried on the business the same after the lease contingent right of dower in the granted or mortas before. The stock of goods fluctuated, and the gaged premises, in aid of the title or interest conveyed plaintiff had notice that it would do so wher he gave by his deed or mortgage. Her release attends the title the lease; he also knew that the defendant was to, and derived from the husband, and concludes ber from did continue the business in that way. There was no afterward claiming dower in the premises as against restraint upon him in regard to it, or the disposition the grantee or mortgagee, so long as there remains a of the money when the goods were sold. We think
subsisting title or interest, created by his conveyance. the finding was fully justified by Edgell v. Hart, 9 N. But it is the generally recognized doctrine that when Y. 213, and Yardner v. McEwan, 19 id. 123. Oct. 5, the husband's deed is avoided, or ceases to operate, as 1886. Reynolds v. Ellis.
when it is set aside at the instance of creditors, or is HIGHWAY - DEDICATION AND ACCEPTANCE — OB- defeated by a sale on execution under a prior judgSTRUCTION.-The defendant is the owner of lands ment, the wife is restored to her original situation, abutting on the easterly side of the public highway. and may after the death of her husband, recover About eight years prior the commencenient of this dower as though she had never joined in the conveyaction she set back the fence or wall on said highway ance. Robinson v. Bates, 3 Metc. 40; Maloney v. in front of her premises some teu or eleven feet; and Horan, 49 N. Y. 111; Ketzmiller v. Van Rensselaer, 10 substituted, marking the same boundary or monu- Ohio St. 63; Littlefield v. Crocker, 3 Me. 192. In short, ment of her lands, where the fence or wall had there- the law regards the act of the wife in joining in the tofore stood, a row of trees as well as surveyor's deed or mortgage, not as an alienation of an estate, stakes. The plaintiffs alleged that these acts consti- but as a renunciation of her inchoate right of dower tuted a dedication to the public of this strip of land in favor of the grantee or mortgagee of her husband, on the side of the highway. No other dedication nor in and of the title or interest created by his convesany express acceptance by the publio authorities was ance. It follows therefore that her act in joining in alleged or attempted to be shown. It was by these the conveyance becomes a nullity whenever the title acts alone that the fact of dedication was claimed to or interest to which the renunciation is incident is be proved. place of acceptance, viser by the public itself defeated. Scrib. Dower, ch. 12, $ 49. The wife's was alleged and relied on. We think there is nothing deed or mortgage of her husband's lands cannot stand in the record to show that the strip of land in ques- independently of the deed of her husband when not tion was not left open for the pleasure or convenience executed in aid thereof, nor can she by joining with of the owner rather than the accominodation of the her husband in a deed of lands to a stranger in which public, but assuming the aot of the owner to be equiv- she has a contingent right of dower, but in which the ocal and consistent with a dedication to the public, it | husband has no present interest, bar her contingent is plain there has been no acceptance on its part, nor right. Marvin v. Smith, 46 Y. Y. 571. These princisuch actual user as might take its place. The plain- ples are, we think, decisive of this case. The plaintiffs do not aver acceptance, and the only one of them tiff's mortgagee has been defeated by the paramount who testifies, states that he never heard of any dedica- title derived under the execution sale. It was the tion of the land. The act relied on as an act of dedi- husband's mortgage, and not the mortgage of the wife, cation is the setting back by the defendant of her except for the limited and special purpose indicated. fence and placing trees on the old line. The alleged The lien of the mortgage, as a charge on the lands of user is for a highway with her knowledge and consent. the husband, had by the execution sale been subWe are referred to no evidence of this and find none. verted and destroyed. Nor can the security be con. An owner of laud cannot by the mere removal of bis verted into a mortgage of the widow's dower, now fence impose upon the public a strip of land as a
consummated by the death of her husband. This street, nor can the public deprive the owner of any would be a perversion of its original purpose. Her right or interest in, or control over it, by that circum- act, in signing the mortgage, became a nullity on the stance. Here there was nothing more. There was extinguishment of the lien on the husband's lands. Il neither an actual gift by the owner of the land, nor a on the execution sale there had been a surplus appliuser by the public; no evidence by word, or by any de cable to the mortgage, it might very well be held that