below, 151 N. Y. 665, 46 N. E. 1148. There was color of title, because there was that which in appearance was title, although in reality it was not.

Was the entry adverse? Without leave or license from the plaintiff the defendants took physical possession of his property at the outset, and from that day to this have never let go. The seizure was by building a huge structure of iron in the street, which we have held to be permanent, and have frequently awarded damages on that basis. The defendants grasped the easements of the plaintiff as by an iron hand and never loosened their hold. They did it under color of title measured by the grant and under claim of title measured by the user. If one without consent, either direct or indirect, projects his building over upon his neighbor's lot, under color of title, however dim, it is necessarily a hostile entry, as the act speaks for itself and is a public proclamation of hostility to the title of the real owner. Possession thus taken is no more open, hostile or relentless than that of the defendants has been for 20 years. Absolute and exclusive, as far as it went at all, it said in substance in the name of the defendants, "We have taken these easements claiming them under our grant and purpose to keep them for all time to come." As was said by the Court of Errors many years ago: "It is not necessary, to constitute an adverse possession, that it should have commenced under an effectual deed. If the possessor claims under written evidence of title, and on producing that evidence it proves to be defective, the character of his possession as adverse is not affected by the defects of his title. If the entry is under color of title, the possession will be adverse, however groundless the supposed title may be. The fact of possession and its character, or the quo animo of the possessor, are the test. * The actual possession and improvement of the premises, as owners are accustomed to possess and improve their estate, without any payment of rent, or recognition of a title in another, or disavowal of title in himself, will, in the absence of all other evidence, be sufficient to raise a presumption of his entry and holding as absolute owner, and, unless rebutted by other evidence, will establish the fact of a claim of title." La Frombois v. Jackson, 8 Cow. 589, 596, 603, 18 Am. Dec. 463. So in Barnes v. Light, 116 N. Y. 34, 39, 22 N. E. 441, we said: "The defendant, however, contends that it does not appear that the plaintiff or his grantors ever claimed this strip of land, or any part of it. There is no evidence that any claim of title was made by word of mouth, but it appears that each grantee in taking possession of the farm, under his deed, entered upon, actually occupied and improved the land in controversy, or a part of it, although it was not included in his conveyance. *** A claim of title may be made by acts alone, quite as effectively as by the most

emphatic assertions." The railroads recognized no title except the one they claimed to have acquired themselves and within the boundaries of which the property taken purported to come. White v. Manhattan Ry. Co., 139 N. Y. 19, 27, 34 N. E. 887.

The plaintiff in his complaint alleges that the entry was without his consent and that the construction and operation of the road was a daily trespass. A trespasser's possession is necessarily adverse, and the entry without the consent of the plaintiff implies that it was against his will. Entry without consent and under color of title is presumed to be hostile when physical possession is taken and continuously maintained openly and exclusively. Ignorance of the disseisor as to who the real owner is does not make the entry any the less adverse, and has no effect upon prescriptive right when possession is taken and maintained against all the world. The persistent fight of the companies, unprecedented in the history of the court as disclosed by our records, shows their determined refusal to recognize the rights of abutters and confirms the claim that their possession was hostile to the end. The daily trespass was but a continuation of the original taking of possession and did not prolong the prescriptive period, as the action was not commenced until the 20 years had run and the bar was complete. Were the rule otherwise there could be no title by prescription, for continuity of possession during the period required is essential to the right. If possession on the last day of the 20 years extended the right to sue, no lapse of time would be effective and all the learning in the books upon the subject would go for naught. The defendants, it is true, entered into possession in the mistaken belief that they owned the easements, but they were trespassers, notwithstanding, and their action was adverse, for the property existed and they took it under color of title. Until the decision of the Story Case in October, 1882, it was generally believed that the easements belonged to the city and passed under the grants. Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122, 43 Am. Rep. 146. That case, however, did not make the law, but simply announced it, and because the city did not own what until then it was supposed to own, did not change the intent of the grant or of the act of taking possession. In most cases of adverse possession the disseisor goes in under a mistake, not as a mere intruder or squatter, but in the belief that he has the right to enter. That does not make the entry under color of title and claim of right any the less adverse. Here the abutters did not own the streets, but owned certain street rights. The defendants appropriated those rights believing that they had acquired them by a grant from the city, which purported to cover them. This was a hostile entry and the possession was adverse throughout.

We think that both upon principle and au

thority the doctrine of prescription applies to the defendants' railroad. The case of the American Bank Note Company is suggestive, and the Lewis Case is controlling. While the authority of that case was temporarily weakened somewhat upon a point not now material by our later decision in Fries v. N. Y. & Harlem R. R. Co., 169 N. Y. 270, 62 N. E. 358, it was fully restored, even as to that point, by the Supreme Court of the United States in several decisions. Muhlker v. N. Y. & Harlem R. R. Co., 197 U. S. 544, 569, 25 Sup. Ct. 522, 49 L. Ed. 872; Birrell v. N. Y. & Harlem R. R. Co., 198 U. S. 390, 25 Sup. Ct. 667, 49 L. Ed. 1096. Our conclusion is that the evidence objected to was incompetent, that the principle of prescription should be applied to the railroad of the defendants, that there was no evidence except that held incompetent to justify the finding of fact that no prescriptive right existed and that, hence, said evidence is presumed to have controlled the result and its admission requires a reversal.

The judgment should be reversed, and a new trial ordered, with costs to abide the final award of costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT, and CHASE, JJ., concur.

Judgment reversed, etc.

(185 N. Y. 359)

SCALLON et al. v. MANHATTAN RY. CO.

et al.

(Court of Appeals of New York. June 12, 1906.)

1. LIMITATION OF ACTIONS-SUSPENSION RUNNING OF LIMITATIONS-INFANCY.

Where infancy exists when a cause of action accrues, the time for commencing the action is extended for a certain period after the infant becomes of age; but, if the statute has already begun to run against the ancestor, it is not interrupted by his death and the supervening disability of his infant heirs, in the absence of provisions to the contrary.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, §§ 417-420.1 2. SAME.

Code Civ. Proc. § 375, providing that where a person who may maintain an action, is, when his cause of action first accrues, within the age of 21 years, the time of the disability is not a part of the time limited for commencing the action, etc., when considered in connection with the history of the legislation as embodied in Laws 1788, p. 683, c. 43, Laws 1801, p. 510, c. 183, § 3, 2 Rev. St. (1st Ed.) p. 295, pt. 3, c. 4, tit. 2, §§ 16, 41, and Code Proc. $$ 88, 106, and in connection with Code Civ. Proc. 408, declaring that a person cannot avail himself of a disability unless it existed when his right of action accrued, does not change the rule that no disability of infancy will postpone the operation of the statute of limitations unless it exists when the cause of action accrues, and that when the statute begins to run no subsequent disability will interrupt it; and where an ancestor had a cause of action for damages caused by the construction of a railway in front of his premises, the

statute of limitations was not interrupted by his death and the supervening disability of his infant heirs.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, §§ 417-420.] Appeal from Supreme Court, Appellate Division, First Department.

Action by Frances M. Scallon and another against the Manhattan Railway Company and another to recover damages caused by the construction and operation of railways by defendants in front of the premises of plaintiffs. From a judgment of the Appellate Division (98 N. Y. Supp. 272), affirming a judgment awarding damages, defendants appeal. Reversed.

Julien T. Davies and John F. Dillon, for appellants. Edward S. Hatch and Vincent P. Donihee, for respondents.

VANN, J. The appeal in this action was argued at the same time with that in the Hindley Case against the same defendants. Hindley v. Manhattan Ry. Co., 185 N. Y. -, 78 N. E. 276. As the facts relating to the cause of action are substantially alike in both cases, our decision in that case must control this, unless the disability of the plaintiffs for a time on account of their infancy, a feature which exists in this case only, requires a different conclusion. The entry by the defendants was in 1879, and this action was commenced in 1902. The trial court found that the plaintiffs derived title from their mother, Mary A. Scallon, who purchased the abutting property at a foreclosure sale in 1879. Mrs. Scallon died intestate in 1888, seised in fee of said property, leaving the plaintiffs, one aged 11 and the other 9, as her only heirs at law. The elder daughter became of age on the 10th of January, 1898, and the younger on the 5th of December, 1900.

The question not common to both cases is whether the supervening disability of the plaintiffs operated to defeat the defendants' claim to title by prescription. The Appellate Division did not consider this question, and Mr. Justice Houghton, one of the concurring judges, in stating the reason, made some observations so pertinent to the questions involved in both cases that we quote them in full, as follows: "But for this former decision (referring to the Hindley Case as decided by the Appellate Division), however, I should be of the opinion that the defendant could and had obtained prescriptive rights against abutting owners, and that its occupation of the streets became hostile before the decision of the courts in 1882, adjudging that the rights of abutting owners had been invaded, and that the purchase or recognition of the rights of one abutting owner on the route, did not destroy defendants' prescriptive rights against other abutters whose claims were not conceded. Although the defendant began its

occupancy under grant from the state to the street only, yet from its manner of occupation, and from its resistance to payment for invasion of the individual rights of abutting owners, it must be deemed, I think, to have occupied under claim of right to use all that was necessary to the erection, maintenance and operation of its railroad. From the very nature of the structure, and from the necessary manner of operation, the light, air, and access of abutting owners was appropriated. That the defendant believed it had the right to these under its grant from the state, or that it insisted that abutting owners had no redress for their invasion, did not change its rights or the character of its occupation. That occupation was open, notorious, and exclusive, either under claim of title or in hostility to the owner's rights, and contained all the elements, it seems to me, necessary for the ripening of prescriptive title. While the right of way is continuous, and in a broad sense must be treated as a whole, yet the invasion of individual rights is single; and I see no reason why such single right cannot be obtained by adverse possession, notwithstanding the rights of other abutters similarly situated may be recognized. The question in the present case as to whether or not the statute of limitations was suspended by the death of the owner and the descent of the real property to her infant heirs, would be important if defendant could obtain title by prescription, but under the decision as rendered it becomes immaterial."

Returning to the question as to the effect of supervening disability, it is urged in behalf of the plaintiffs that the presumpton of a grant, upon which title by prescription is founded, cannot be indulged against an infant, and that the running of the statute of limitations is suspended during the period of infancy. Code Civ. Proc. § 375. Adverse possession and prescription are closely related. The one is regulated by statute, and the other by common law, which has adopted 20 years as the prescriptive period from analogy to the statute of limitations. Code Civ. Proc. §§ 369-371; Lewis v. N. Y. & Harlem R. R. Co., 162 N. Y. 202, 223, 56 N. E. 540. Adverse possession is the open and hostile possession of land under claim of title to the exclusion of the true owner, which, if continued for 20 years, ripens into an actual title. Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312, 10 L. R. A. 387. Prescription rests upon the presumption of a grant of incorporeal rights that has become lost, and after the lapse of 20 years the presumption ripens into a title also. It is measured by user, and the adverse use must commence in the same way, continue for the same period, and be of the same character as the adverse possession required to give title to real estate. Lewis Case, 162 N. Y. 224, 56 N. E. 540. The close connection between the two methods of acquiring prop

erty makes it reasonable and natural to extend the analogy to the subject of disability. There is no reason for affording greater protection to incorporeal rights than to the land to which those rights are appurtenant. The effect of infancy upon statutes of limitation is not uniform but depends upon circumstances. If infancy exists when the cause of action first accrues, the time for commencing the action is extended for a certain period after the infant becomes of age. If, on the other hand, the statute has already begun to run against the ancestor, it is not interrupted by his death and the supervening disability of his infant heirs. An adverse possession commencing in the lifetime of the ancestor will continue to run against the heir, although he is an infant, when his right accrues. This rule is well established by authorities of the highest standing. Fleming v. Griswold, 3 Hill, 85; Becker v. Van Valkenburgh, 29 Barb. 319, 324; Bradstreet v. Clarke, 12 Wend. 602, 619; Demarest v. Wynkoop, 3 Johns. Ch. 129, 138, 8 Am. Dec. 467; Jackson v. Wheat, 18 John's. 40, 41; Jackson v. Johnson, 5 Cow. 74, 93, 15 Am. Dec. 433; Hogan v. Kurtz, 94 U. S. 773, 779, 24 L. Ed. 317; McDonald v. Hovey, 110 U. S. 619, 4 Sup. Ct. 142. 28 L. Ed. 269; Stowell v. Zouch, Plowd. 353a; Doe v. Jones, 4 T. R. 300; Doe v. Jesson, 6 East, 80; Tyler's Ejectment and Adverse Possession, 929, 930; 19 Am. & Eng. Ency. (2d Ed.) 222; Buswell's Limitations and Adverse Possession, 175; Wood on Limitations, § 6; Angell on Limitations. § 196. If this rule applies to the case before us, the intervening infancy of the plaintiffs would not extend the period of limitation, which had run for about eight years at the time of the death of their mother, who was not shown to have been under any disability in her lifetime. The rule, as stated by us, prevailed at least until the enactment of section 375 of the Code of Civil Procedure, in its present form, but it is claimed that by the amendment of that section, in 1876, the rule was changed. Laws 1876, p. 69, c. 448, § 375. That section, so far as material, reads as follows: "If a person, who might maintain an action to recover real property, or the possession thereof, or make an entry, or interpose a defense or counterclaim, founded on the title to real property, or to rents or services out of the same, is when his title first descends, or his cause of action or right of entry first accrues, either: Within the age of twentyone years * *the time of such a disability is not a part of the time, limited in this title, for commencing the action, or making the entry, or interposing the defense or counterclaim; except that the time so limited cannot be extended more than ten years, after the disability ceases, or after the death of the person so disabled." Code Civ. Proc. § 375.

It is contended that the phrase "when his title first descends, or his cause of action or right of entry first accrues," refers to the plaintiffs only and not to their ancestor, although both ancestor and heir were previously regarded as one person under the statute. A reference to the origin and history of the provision upon the subject becomes important to see whether there has been any substantial change in legislation since the cases cited were decided. The first pertinent enactment that we find in this state is the following: "If any person or persons who is or shall be entitled to such writ or writs of formedon or scire facias, or who hath or shall have such right or title of entry, be, or shall be, at the time the said right or title first descended, accrued, come or fallen, within the age of one and twenty years," the time is extended. Laws 1788, c. 43; 2 Laws N. Y. 1785-88, pp. 683, 687. In 1801 the proviso was changed so as to read as follows: "If any person entitled to any such writ of scire facias, or to make such entry, be at the time such right or title first descended or accrued within the age of twenty-one years," etc. Laws 1801, p. 510, c. 183, § 3. In the Revised Statutes the provision was: "If any person entitled to commence any action in this article specified, or to make any entry, avowry or cognizance, be at the time such title shall first descend or accrue within the age of twenty-one years," etc. 2 Rev. St. (1st Ed.) p. 295, pt. 3, c. 4, tit. 2, § 16. "No person shall avail himself of any disability enumerated in this title, unless such disability existed at the time his right of action or of entry accrued." Id. § 41. The revisers, in their note to section 16, after stating that it is a consolidation of the provisos in several sections in the revised laws, continue: "The English statute (St. 32 Hen. VIII, c. 2) made provision for those who were under disabilities at the time of the passing the act, but not for subsequent disabilities. In the revision of Jones & Varick (volume 2, p. 262) subsequent disabilities were provided for * * and the same difference in the language of the exceptions between writs of right and possessory actions exists. Whether it was accidental or designed there are now no means of determining. The revisers have not met with any decision on the point; but the general language of the courts is, that a statute bar, having once begun to run, will continue to run, notwithstanding a subsequent disability. Fowler v. Hunt, 10 Johns. 464; Jackson v. Cairns, 20 Johns. 306; Demarest v. Wynkoop, 3 Johns. Ch. 129, 8 Am. Dec. 467. There seems no reason for the distinction, but much for uniformity." 3 Revisers' Reports, c. 4, tit. 2, § 16. The Code of Procedure provided that, "If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or services out of the

same, be, at the time such title shall first descend or accrue within the age," etc. Code Proc. § 88. "No person shall avail himself of a disability unless it existed when his right of action accrued." Id. § 106. The Code of Civil Procedure provides by section 408 that "a person cannot avail himself of a disability unless it existed when his right of action or of entry accrued."

We think the provision as now found in the Code of Civil Procedure has the same effect, so far as supervening disability is concerned, as when it stood in the Code of Procedure or the Revised Statutes. While verbal changes have been made, and the language simplified, the substance has not been changed. The construction contended for by the plaintiffs loses sight of the word "first," which runs through all the legislation on the subject, and is the controlling feature of the provision. There was but one cause of action against the defendants, and that belonged to the ancestor in her lifetime, but upon her death passed with the land to her heirs. When did that cause of action first accrue? Clearly in 1879 or 1880 when the defendants completed their elevated railroad and began to operate it. The statute blends ancestor and heir, who had but one cause of action between them, which did not first accrue upon the death of the ancestor, for the right to sue had existed for eight years before she died. The words "cause of action" are associated with the words "right of entry," and it is when either "first accrues," or when the title "first descends," that the disability, in order to be effective, must exist. When did the right of entry, or the cause of action, first accrue if not upon the construction of the elevated structure and the appropriation of the easements thereby? Any construction other than the one thus indicated gives the statute the same meaning as if the word "first" did not occur therein, and the effect would be that if one of the plaintiffs had died before she became of age leaving an infant heir, her disability would shift to the latter and thus the operation of the statute might be indefinitely postponed to the injury of the public. We think there was no intention by the last amendment of the statute, as was said by Mr. Justice Bradley, of an act of Congress relating to the same subject, "to change the rule which has always, from the time of Henry VII, been applied to statutes of limitation, namely, the rule that no disability will postpone the operation of the statute, unless it exists when the cause of action accrues, and that when the statute begins to run no subsequent disability will interrupt it." McDonald v. Hovey, 110 U. S. 619, 630, 4 Sup. Ct. 142, 147, 28 L. Ed. 269.

As all other questions involved in this appeal are resolved in favor of the defendants by our decision in the Hindley Case, it follows that the judgment appealed from in this case must also be reversed, and a new trial

granted, with costs to abide the final award of costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT, and CHASE, JJ., concur.

Judgment reversed, etc.

(185 N. Y. 317)

PEOPLE v. CASCONE.

(Court of Appeals of New York. June 12, 1906.)

1. HOMICIDE-MURDER IN FIRST DEGREE-EVIDENCE-SUFFICIENCY.

Evidence on a trial for murder in the first degree examined, and held to justify a verdict of guilty, either on the theory that accused committed homicide himself or on the theory that he induced another to commit it and aided him therein, notwithstanding there was a preponderance in the number of witnesses with oppor unity to know the facts in favor of accused.

2. HOMICIDE-APPEAL REVIEW - ERRORS IN

ADMITTING EVIDENCE.

Where, on a trial for homicide, the evidence of witnesses with equal onnortunity to know the facts was so conflicting that slight evidence might have decided the guilt of accused, and there was no significant circumstance to guide the jury in determining the conflict, errors in the admission of evidence, ordinarily disregarded, may justify the granting of a new trial.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 709-713.]

3. SAME-REVERSIBLE ERROR.

On a trial for homicide, the evidence was conflicting, and the greater number of witnesses with opportunity to know the facts preponderated in favor of accused. The court admitted evidence showing that decedent, in the presence of accused, charged accused with the killing, and that he did not deny the charge, but the evidence did not show that accused understood what was said. The prosecuting attorney, in arguing the case to the jury, asserted that the statements made by decedent were evidence of accused's guilt. The court failed to charge that the statements could not be treated as dying declarations. Held, that the admission of the evidence was reversible

error.

4. CRIMINAL LAW-ADMISSIONS OF GUILT

EVIDENCE-ADMISSIBILITY.

On a trial for homicide, evidence that accused, on having his attention called to decedent's written statement that he had had a quarrel with accused's brother, only shrugged his shoulders, was inadmissible as an admission of guilt, in the absence of evidence showing that accused knew what was said that led up to the written statement or that he understood it. 5. SAME.

On a trial for homicide, evidence that decedent, in the presence of accused, nodded his head in response to the question, "Is this the man who shot you?" was inadmissible as an admission of guilt, when accused said in English, "He means two," and then started to talk in Italian, and was told not to, and hurried away. 6. SAME-TRIAL EVIDENCE EXCEPTIONSSUFFICIENCY.

On a trial for homicide, the court, under objection and exception, permitted evidence that accused had caused a witness for the prosecution to be a harlot. The motion of the defense to strike out the evidence was denied, and an exception was taken. Thereupon the court asked the witness questions showing that ac

cused caused the witness to be a harlot and that his wife received the proceeds. The questions of the court were not objected to. Held, that the exceptions taken raised reversible error in admitting the evidence.

7. SAME-ATTACKING CHARACTER OF ACCUSED -JUSTIFICATION.

That the defense on a trial for homicide showed, on the cross-examination of a female witness for the state, that she was living in meretricious relations, did not justify the admission of evidence that accused had caused th witness to live as a harlot.

8. WITNESSES-CREDIBILITY-IMPEACHMENT. The credibility of accused cannot be attacked by independent proof of his guilt of another offense, which can be shown only by his own admissions on cross-examination or by the record of conviction.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1126-1128, 1132.] 9. SAME.

An accused, on trial for crime, cannot be asked on cross-examination whether he has been indicted or tried for crime, and only a conviction may be thus proved.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1140-1143, 1146-1148.]

Cullen, C. J., and Haight, J., dissenting.

Appeal from Court of General Sessions. New York County.

Raffaele Cascone was convicted of murder in the first degree, and he appeals. Reversed. James W. Osborne, for appellant. Robert L. Taylor, for the People.

VANN, J. The defendant and his brother, Dominico Cascone, were jointly indicted for the murder of Tirigi Sinischalchi on the 9th of June, 1903, at the borough of Manhattan, by inflicting a gunshot wound upon him, of which he died ten days later. The defendant was tried and convicted of murder in the first degree, but his brother fled and was never taken. At the time of the homicide the defendant was 37 years old, of large size and great strength, while his brother, aged 28, was small and weak. Two persons were shot at the same time and by the same person, Sinischalchi, for whose murder the defendant was tried, and Santanelli, who was killed outright on the same occasion, but his name does not appear in the indictment now before us. The homicides took place at about half past 7 in the evening of June 9, 1903, in the open street nearly in front of No. 112 Mulberry street in the city of New York. The sidewalk was thronged with people at the time, and there were some in the driveway. There had been ill feeling between Dominico Cascone and the two men who were killed for a longer or shorter period. When it began does not appear, and the first we learn of the relations of these men, beyond their mere acquaintance, is from one Cibelli, a relative of both Sinischalchi and Santanelli, who testified that on Decoration Day, May 30, 1903, ten days before the homicide, Dominico had an altercation with them, and one of them slapped him in the face. He was not injured, but