rily in a private conveyance voluntarily trusts his personal safety in the conveyance to the person in control of it. Voluntary entrance into 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 person 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 Otis 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 disclose how the plaintiff was related to the driver.

In Lake Shore & M. S. R. Co. v. Miller, 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 assigned 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 agent, 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 neither had nor exercised any authority or control, and 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 liabil ity 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 and 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 so vague and undefined, as applied to circumstances such as are here presented, where no relation like that of master and 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 has little or no support in this country; that the decision in Thorogood v. Bryan

has not escaped criticism in 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, and 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. Lich. 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 which 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 conduct 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 had the right or power to control. We cannot accede to the proposition that the driver of a private carriage becomes, pro hac vice, an agent of the person riding with him, in any such sense as to make the negligence of the former, in legal contemplation, 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 circumstances, held the negligence of the driver no bar to an action against the other wrong-doer. To the same effect is Masterson v. N. Y. C. & H. R. R. Co., 84 N. Y. 247.

In a late case in the Supreme Court of the United States (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 upon 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 horsecar from the concurrent negligence of the driver and of the defendant. This was held not to bar a recov ery. The substance of the reasoning of the court was that the right to control the conduct 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 Mich. 596, the plaintiff's intestate was one of a number of boys whom a clergyman 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 point that the boy was so identified with those in charge of the yacht in which he was that his rights were affected by their negligence is disposed of by the court by alluding to the fact that neither the boy nor the clergyman had any authority respecting the management of the vessel; the court saying: "Where a person can rightfully have no voice or control, he cannot be held so identified with those in charge as to be considered a party to their negligence." It was further said: "The reason for holding a person riding in a private conveyance identified with the driver thereof, and therefore affected by the negligence of the latter, cannot fairly or justly be held applicable in cases like the present. In the case of a private conveyance, the driver is under the control and directions of the passenger, and if not, the latter may well decline to intrust his safety further in such conveyance." We here remark that the last clause recited is suggestive of a reason for holding the passenger to be himself guilty of negligence, under some circumstances, as if he consents to ride with a person known to be reckless, or unskilful, but it suggests to our minds no reason for imputing the negligence of the driver to the passenger if in fact he is not himself personally chargeable with any imprudence, and in fact has no authority over the driver. The reasoning of the court in this case is such as to oppose the doctrine of imputed contributory negligence, where in fact the passenger has no authority or control over the driver, even though the conveyance be a private one.

In Transfer Co. v. Kelly, 36 Ohio St. 86, and Wabash, St. L. & P. Ry. Co. v. Shacklet,[105 Ill. 364, which were cases of injury to passengers in public conveyances, the doctrine of Thorogood v. Bryan was repudiated.

This case is unlike one where two or more persons unite in the joint prosecution of a common purpose, under such circumstances that each may be deemed to have authority to act for all, or so that each has a right and bears a responsibility in respect to the control of the means or agencies employed. The controlling fact here is that the plaintiff did not participate in, and had no authority respecting the management of the vehicle; neither is there any claim that she was herself guilty of negligence. This being the case, we are unable to assign any legal principle in accordance with which the negligence of Kiefer can be imputed to her; and we think that the weight of authority in this country is opposed to it.

The order refusing a new trial must therefore be reversed.

ADVERSE POSSESSION-"OPEN AND NOTORIOUS."The action was brought to recover certain awards made to "unknown owners" for the taking of certain land in the city of New York, for the opening of Madison avenue, which awards were paid by the city to defendants' testator upon his claim to be the owner of the land. Both parties claim the land taken by title derived from P. His conveyance of the land in the chain of plaintiff's title was made June 21, 1827, and if that conveyance had been at once recorded, there is no dispute that plaintiff's title to the land and the awards would have been perfect. But the infirmity in his title arises from the fact that that conveyance was not recorded until August 15, 1864. P.'s conveyance of the land in W.'s chain of title was dated January 29, 1861, and recorded the next day. So that the defendants have the best record title, and if there were nothing more, their title to the money awarded for the iand and paid to their testator would have been perfect. There is no evidence that any of the persons

under whom the defendants claim were ever in the possession of the land or ever exercised any acts of ownership over the same. But the plaintiff claims that his grantor was in the actual, open, notorious possession of the land by his tenant in January, 1861, and hence that within the rule laid down in Brown v. Valkening, 64 N. Y. 76, and other cases, there was constructive notice to P.'s grantee at that time of the prior unrecorded deed and of the rights acquired thereunder. He also claims that for more than twenty years before the land was taken by the city and the awards made, he and those under whom he claims were in the actual possession of the land, claiming under the conveyance from P., and hence that his title to the award was perfect on that account. The persons who knew most about the facts relating to the possession were at the trial of this action dead, and hence the evidence as to such possession was not as certain and definite as could be desired. But it was submitted to the jury under instructions as to the law which we must, in the absence ofthe charge or any exceptions thereto, assume to have been proper and satisfactory, and their verdict in favor of the plaintiff must be regarded as conclusive so far as there was any evidence upon which it could be based. To make out the adverse possession in this case it was incumbent upon the plaintiff to prove that the land was usually cultivated or improved," or that it was "protected by a substantial inclosure.' 2 Rev. Stat. 294; Code of Proc., § 83; Code of Civil Proc., § 370. Here without going particularly into the evidence we are satisfied that there was some evidence from which the jury could find that both of the conditions mentioned were satisfied during a period of more than twenty years preceding the date of the awards, and that plaintiff's claim of adverse possession was therefore well founded. Without therefore determining whether at the date of the second deed of P., to-wit, January 29, 1861, plaintiff's grantor was in the open, notorious and actual possession of the land within the meaning of the case of Brown v. Valkening and other cases cited, we are of opinion that for the reasons stated the judgment should be affirmed. Oct. 5, 1886. Paige v. Waring. Opinion by Earl, J.

APPEAL-JURISDICTION OF COURT OF APPEALSCODE CIV. PROC., §§ 191, 1337-APPEAL FROM DECREE

OF SURROGATE-CONFLICTING EVIDENCE ON ISSUE OF

46

FACT. The Court of Appeals has such jurisdiction as is designated and created by law, and no other. Such jurisdiction is subject (Code Civ. Proc., § 191) to various limitations, exceptions and limitations, and is further restricted by section 1337 of the Code, which declares that a question of fact arising under conflicting evidence cannot be determined upon such an appeal, unless where special provision for the deter. mination thereof is made by law." Held, that the amendment to section 1337 (L. 1883, ch. 229) did not enlarge, or purport to enlarge, the appellate power of this court, but only regulates such appeals as by existing laws were permitted. The decree of a surrogate rendered upon the trial of an issue of fact (in this case a testator did not execute a codicil to his will under duress, fraud or receipt) is for the purposes of review regarded as a judgment; and the determination of the General Term on appeal therefrom, if there is any evidence upon which its decision may reasonably and fairly stand, concludes this court. Oct. 5, 1886. Hewlett v. Elmer.

they are fully stated, and in regard to surveyor's fees. Matter of Merriam, 84 N. Y. 607; Matter of Pelton, 85 id. 651; Matter of Lowden, 89 id. 548, are against petitioner. On the other hand the appeal by the corporation should succeed. The question presented by it relates to the item of $1,206.53 awarded to the Manhattan Gas-light Company," for the expense it may be (the contrary does not appear) of removing and relaying their gas pipes in consequence of the construction of the sewer in question, and in performance of a duty to do so imposed upon them by a city ordinance. Revision of 1866, p. 243, § 16; of 1880, pp. 105, 106, §§ 166, 171. The same ordinance declares that all expenses or damage incurred or sustained by such company shall form a portion of the expenses of such sewer, and be assessed and collected in the same manner as the other expenses thereof. Its disallowance is not justified by our decision in Deering's case, 93 N. Y. 361. The assessment then in question was for regulating and grading a street, and an item similar to that now under consideration was rejected, because the occasion which required it was not within the ordinances above referred to. It is otherwise with the case now before us. If the item was for a purpose different from that suggested, it was the duty of the petitioner to point it out, and establish an error if one existed. In re Eager, 46 N. Y. 109. It is not even alluded to in the petition, and the proof is only that such an item forms part of the general sum. Counsel for petitioner calls our attention to the Matter of Lilienthal, 28 Hun, 641, and to the Houghton case, 20 id. 395. In the first the opinion of the court does not appear, and we have no means of knowing the circumstances of the case or the view taken of them. The other seems to have turned upon a provision of the contract then in question. In the case before us the contract is not produced, nor is there evidence that it contains the provision on which reliance was placed in the case cited. So far therefore as the order of the General Term modifies the order of the Special Term, it should be reversed, and the order of the Special Term affirmed, but in other respects the order of the General Term should be affirmed, and the petition dismissed, with costs to the city of New York. Oct. 5, 1886. In re Petition of Johnson. Opinion by Danforth, J.

CONTEMPT-EXECUTOR ORDERED TO PAY MONEYCODE, § 2555-DISCRETION.-The exercise of the power given by section 2555, Code of Civil Procedure, which provides that the decree of a Surrogate's Court, directing the payment of money, or requiring the performance of any other act by an executor or administrator, when the decree relates to the fund or estate, may be enforced, if the executor or administrator refuses or willfully neglects to obey it, by punishing him for a contempt of court, is discretionary with the court to which application is made, and when exercised, is not reviewable in this court. Oct. 5, 1886. Matter of Snyder. Opinion by Danforth, J.

*

*

**

EXCISE LAW-CHARGE OF COURT-CONSTITUTIONAL LAW-RULES OF EVIDENCE.--(1) Defendant had from September 6, 1880, to May 1, 1881, when it was revoked. a license to sell liquors, * not to be drunk upon the premises. In an action against him for selling liquors * without a license, the evidence of violations of the license by defendant by the sale of liquors to be drunk upon the premises was restricted to proof of sales limited to that period. The court charged the jury as follows: "The law provides in such case as this that upon proof being made of the fact that liquor was seen to be drunk on the premises, that is prima facie evidence that it was sold with intent that it was to be drunk on the premises." Held, that the charge was authorized if applied to drinking

upon the premises during the time he had the license, but not if applied to the drinking of liquor before September 6 or after May 1. But as it did not appear that any drinking took place before the first or after the latter date, and defendant's counsel failed to call the attention of the judge to the facts, and ask for a qualification of the charge, it must be treated as if applied only to the period covered by defendant's license. (2) A statute which provides that upon proof being made of the fact that liquor was seen to be drunk on the premises, that it was prima facie evidence that it was sold with the intent that it should be drunk on the premises is constitutional. The general power of the Legislature to prescribe rules of evidence and methods of proof is undoubted. While the power has its constitutional limitations it is not easy to define precisely what they are. A law which would practically shut out the evidence of a party, and thus deny him the opportunity for a trial, would substantially deprive him of due process of law. It would not be possible to uphold a law which made an act prima facie evidence of crime over which the party charged had no control, and with which he had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act and no tendency whatever by itself to prove a criminal act. But so long as the Legislature, in prescribiug rules of evidence in either civil or criminal cases, leaves a party a fair opportunity to make his defense and to submit all the facts to the jury, to be weighed by them, upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds. Affidavits in town bonding acts and tax deeds have been declared to be prima facie evidence of regularity and validity, and numerous statutes of similar character are to be found in this and other States. In Commonwealth v. Williams, 6 Gray 1, it was held in a criminal prosecution for a violation of the excise law, that a statute which provided that the delivering of any spirituous and intoxicating liquors in or from any building or place other than a dwelling-house "shall be deemed prima facie evidence of a sale," was constitutional and valid. In State v. Husley, 54 Me. 562, it was held that an act which provided that whenever an unlawful sale of intoxicating liquors "is alleged, and a delivery proved, it shall not be necessary to prove payment, but such delivery shall be sufficient evidence of sale," was constitutional. In Howard v. Moot, 64 N. Y. 261, Allen, J., said: "The rules of evidence are not an exception to the doctrine that all rules and regulations affecting remedies are at all times subject to modification and control by the Legislature. * * * It may be conceded for all the purposes of this appeal, that a law that should make evidence conclusive which was not so necessarily in and of itself, and thus precluded the adverse party from showing the truth, would be void, as indirectly working a confiscation of property or a destruction of vested rights. But such is not the effect of declaring any circumstance or any evidence, how ever slight, prima facie proof of a fact to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence." Here the fact, which is made prima facie evidence of an illegal sale, takes place upon the premises of the person charged, has some relation to and furnishes some evidence of the alleged illegal sale, and occurs in a place where liquors are authorized to be kept and sold. To make drinking the liquor in such a place and under such circumstances prima facie evidence of an illegal sale to the person drinking violates no constitutional guaranty. It leaves a party ample opportunity to make his defense. It is specially provided what is now the general law, that the party can

be a witness in his own behalf and thus it can never be difficult for him to show what the facts really are. The burden of proof is not even really changed. The statute enables the prosecutor to make a prima facie case by proof of the drinking. But the defendant can show the circumstances attending the drinking, his relation thereto, and any other facts tending to absolve him from liability, and then on the whole case, the burden still rests upon the prosecution to establish the alleged sale. The defendant has the full benefit of jury trial and due process of law, and a full and fair opportunity, free from any undue hindrance or embarrassment, to make his justification and defense. Hence the charge resting upon the statute was not erroneous. But the statute need not be invoked to uphold the charge. Under the circumstances of this case the drinking was good common-law evidence of a sale in violation of the statute. The defendant kept liquor for sale, and was shown to be engaged in selling it to be drank upon his premises, quite indiscriminately to persons calling for it. It is against all experience that he gave it away, or that persons came there to drink liquor bought elsewhere. It was in his power to prevent the drinking which took place from glasses presumably furnished by him. Evidence of the drinking under such circumstances was certainly prima facie proof that the liquor was bought to be drunk there, and sufficient to justify the charge. Oct. 5, 1886. Com's of Excise v. Merchant. Opinion by Earl, J.

FRAUDULENT CONVEYANCE LEASE CONTAINING CLAUSE GIVING LIEN-TENANT REMAINING IN POSSESSION ASSIGNEE FOR CREDITORS MAY AVOID. — A lease containing the following clause: "And it is further agreed that the lessor shall have a lien as security for all the rent and interest, gas bills and water rates aforesaid, or for any damage to building, due from lessee, upon all goods, wares, chattels, implements, fixtures, tools and all other personal property, which are to be put on the demised premises, belonging to the lessee, or to any one holding or claiming the demised premises, or any part thereof, under him as assignee, under-tenant or otherwise; and such lien may be enforced on the non-payment of any of said rent, interest, water rent or tax bills by the taking of such property and the sale thereof in the same manner as in case of a chattel mortgage on default thereof; such sale to be made on six days' notice posted upon the demised premises, or served upon such lessee, such lien however shall not be enforced against any property, which being a part of the stock in trade, shall have been sold in the regular course of busines," is in effect a chattel mortgage, fraudulent as to creditors, and void as to an assignee for the benefit of creditors. While rent was due and unpaid the tenant made a general assignment of all his property, including that upon the leased premises, for the benefit of his creditors. On the same day, and without notice, actual or constructive, of any claim on the part of the plaintiff, the assignee took possession of the property, and soon thereafter sold and converted it into money,realizing over and above expenses about $2,000. Afterward, but before the commencement of this action, plaintiff demanded of the assignee either payment of the rent accrued and due, "or delivery of the stock of goods, fixtures and other personal property in the store, to him as such lessee, claiming a right and lien under said lease prior and superior to that of said Ellis under the assignment." Held, that in this action to subject the proceeds of sale to the payment of the rent due and unpaid the plaintiff could not recover. It cannot be doubted that the agreement was, as between the lessor and lessee, good as a contract, not only as to property in existence and on the de

mised premises when the lease was executed, but as to that afterward acquired and brought on to them. A similar agreement was examined in McCaffrey v. Worden, 65 N. Y. 459, and a taking by the lessor of property not in existence where the lease was made, justified upon the ground that in substance it had in equity all the characteristics of a mortgage, or of an equitable lien, which for the purposes of that case was said to be its equivalent. There the adverse party was the lessee. That doctrine was applied in a similar action (Wisner v. Ocumpaugh, 71 N. Y. 113) against a person whose relation to the demised premises precluded him from acquiring any rights adverse to those of the lessor, and who therefore was in no better position than the lessee. Here the question was in equity, and is raised by the lessor agaiust an assignee for the benefit of the creditors of the lessee. In the cases cited the lessor had obtained possession of the things in dispute, and the first decision turned upon the validity of the agreement as to non-existent property; the other upon the priority of the plaintiff. So in Hale v. Omaha Nat. Bank, 49 N. Y. 626, there was an agreement for a future lien, and this was held to be sufficient against a defendant who made no title to the property as purchaser, creditor or otherwise, and had nothing but a naked possession tortiously acquired. In other words, the defendant showed no right to question the plaintiff's claim. Here the assignment to the defendant is conceded to be valid,and it is found that under it he had taken possession of the property, and actually sold it without notice of the plaintiff's claim, or the agreement upon which the claim was made; but notwithstanding all this, he has still the avails of the property in his bands, and if the appellant is right in his contention that the defendant's position is not better than that of the lessee, the plaintiff's lien will upon general principles of equity follow those proceeds. We cannot agree however on that contention. The defendant represents creditors, and may treat as void all agreements made in fraud of their rights. Laws of 1858, ch. 314. He has greater power for this purpose than the creditor himself. The creditor can assert no right until by judgment and execution he has a lien, or a right to a lien, upon the specific property, but in favor of an assignee for his benefit, the Legislature has substituted a statutory right in place of these conditions. Southard v. Benner, 72 N. Y. 424. The defendant availed himself of this right, and upon the facts found by the trial judge his action in so doing must be upheld. There was not only no delivery or change of possession of the things covered by the agreement, but it was understood between the parties that there should be neither. It was therefore void both at common law (Twyne's case, 3 Coke, 80) and by statute. 2 Rev. Stat. 136, § 5. It is true, as the appellant says, the clause is not in express terms characterized as a mortgage, nor are the words "sale," "transfer," or "assignment" to be found therein, but that does not matter. It takes effect as a mortgage, and the "lien as security" is given by agreement, or to take the exact words, "it is " between the parties "further agreed" to that effect. While its object may have been to give one creditor priority over another creditor, it also involves a secret trust in favor of the owner of the goods, and forms the very cover of fraud which the statute condemns by declaring that "every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever," unaccompanied by delivery, "and followed by an actual and continued change of possession, shall be presumed to be fraudulent as against the creditors of the vendor." Nor is it of any consequence when the debt provided for by the assignment was created, whether before or after the lease was executed. It is enough that the relation of