Opinion of the Court, per BROWN, J. labeling them, or left them open so that a mistake was very liable to occur. As already stated there was no evidence of a failure to provide an adequate and proper quantity of medicine of good quality and none that they were not properly packed and labeled or that the "Surgery" was not properly fitted up or that it was an improper place for the purposes designated. ance. All the evidence on that subject came from the defendant and was to the effect that all that the statute required was done and that the government officers certified to its performThe negligence charged, therefore, rests in the confusion in the "Surgery" and the disarrangement of the bottles. It was affirmatively shown by defendant that between Glasgow and Greenock during the first two hours of the voyage the medicines were inspected by the medical examiner of the port of Glasgow with the assistance of the physician and that they were then properly packed and labeled and placed in the racks. The statute required that they should then be placed under the charge of the physician and be used at his discretion. The medical examiner of the port left the vessel about six o'clock on the evening of the first day of the voyage, and the plaintiff applied for medicine about eight o'clock in the evening of the following day, and the question presented, therefore, is whether the testimony of confusion in the surgery or disorder in the arrangement of the medicine existing after the vessel put to sea and after the medicines were placed in charge of the physician, was evidence of such neglect of duty on the part of defendant as to render it liable for such injuries as the plaintiff sustained. We think it was not. Any other construction must assume that the ship owner is bound to exercise some supervision over the physician in his treatment of the passengers and his arrangement of the medicine. But no officer on the ship is competent to do that. The very object of the statute is that a skilled professional man shall be on board the ship to attend the passengers in case of sea sickness and dispense the drugs and medicines. Can we hold that a sailor shall have supervision over the doctor, or that an unskilled Opinion of the Court, per BROWN, J. man with no ability to tell one drug from another shall have authority over the skilled experienced physician? To so hold would nullify the law, and put inexperience over experience and ignorance where the law requires knowledge and professional skill. When the ship owner has employed a competent physician duly qualified as required by the law and has placed in his charge a supply of medicines sufficient in quantity and quality for the purposes required which meet the approval of the government officials and has furnished to the physician a proper place in which to keep them, we think it has performed its duty to its passengers. That from that time the responsible person is the physician, and errors and mistakes occurring in the use of the medicines are not chargeable to the ship owner and that no different rule is applicable to such mistakes as are the result of improper arrangement in the care of the medicines than to those which are the result of errors in judgment. The work which the physician does after the vessel starts on the voyage is his and not the ship owner's. It is optional entirely with the passengers, whether or not they employ the physician. They may use his medicines or not as they choose. They may place themselves under his care or go without attendance as they prefer, and they determine themselves how far and to what extent they will submit to his control and treatment. The captain of the ship cannot interfere. The physician is not the ship owner's servant, doing his work and subject to his direction. In his department, in the care and attendance of the sick passengers, he is independent of all superior authority except that of his patient, and the captain of the ship has no power to interfere except at the passenger's request. These views find support in Laubheim v. DeK. N. S. Co. (107 N. Y. 229), and in Obrien v. Cunard S. S. Co. (28 N. E. Rep. [Mass.] 266). The first case arose before congress had legislated upon the subject, but it was said in the opinion that "if by law or by choice the defendant was bound to provide a surgeon for its ship, its duty to the passengers was to select a reasonably 132 100 156 450 Statement of case. competent man for that office, and it is liable only for a neglect of that duty." The Massachusetts case was decided upon a statute of the United States similar to that of Great Britain and it was there said that the ship owners "do their whole duty if they employ a duly qualified and competent surgeon and medical practioner and supply him with all necessary and proper instruments, medicine and medical comforts and have him in readiness for such passengers as choose to employ him.” We think that is the extent of the requirment of the statute in this case and if there was any common-law liability resting upon the defendant to make provision for the care and attendance of its passengers when sick, it was no greater than that imposed by the statute. These views lead to the conclusion that the evidence failed to show the neglect of any duty which the defendant owed to the plaintiff, and the motion to dismiss the complaint should have been granted. The judgment should be reversed and a new trial granted. Judgment accordingly. CATHARINE DIEFENDORF, Respondent, v. MARIAH Diefendorf et al., Appellants. In an action under the Code of Civil Procedure (§§ 1638, 1639) to determine conflicting claims to real property, plaintiff claimed title under a deed from D., her deceased husband; defendants claimed as his heirs at law. Plaintiff's evidence was to the effect that D., a few days before his death, sent for one A., asked him to draw a deed of his property to his wife, giving to him an old deed of the premises in question, and stating that he wished to give to her all of his property, real and personal, in consideration of $3,000 she had paid to him, and other considerations. A. drew the deed, which was executed and acknowledged by D., a notary being in attendance at his request to take the acknowledgment. D. then delivered it to A., with instructions to retain it for his wife until after his death, and then have it recorded. Held, that the transaction was not an attempted testamentary disposition of property, but a gift by deed; that to perfect the gift it was not essential that the delivery should have been to plaintiff, but the delivery to A. for her use was suffi cient, and upon such delivery the title passed to plaintiff. Statement of case. The period between the date of the deed and the commencement of the action was less than three years; her husband had been in possession for many years. Defendants moved to dismiss the complaint on the ground that plaintiff had not been in possession for three years, as required by the Code (§ 1638). Held, that the motion was properly denied, as she and the one whose estate she had, had been in possession for the three years, which was all that was requisite; that it was not essential that the possession for that period should have been adverse to defendants' claim. The property was a village lot, mostly covered by a building, the first floor of which was used for stores. Plaintiff occupied two floors, and the rest of the building was rented to tenants, who paid the rent to her. Held, that this constituted such actual possession as authorized plaintiff to bring the action. (Argued February 2, 1892; decided March 8, 1892.) APPEAL from order of the General Term of the Supreme Court in the third judicial department, made February 4, 1890, which reversed a judgment in favor of defendants entered upon a decision of the court on trial without a jury and granted a new trial. The complaint alleged that plaintiff was in possession of real property under a claim of title by deed from her deceased husband and that defendants claimed the land as heirs at law of her husband. It demanded a judgment barring said defendants from any estate in said property, and that plaintiff's title be quieted and adjudged to be free from any right therein of the defendants. The answer denied plaintiff's possession and alleged that John Deifendorf, plaintiff's husband, was seized of the property at the time of his death, and died intestate leaving plaintiff as his widow and defendants as his heirs at law. The defendants introduced no evidence upon the trial. It appeared that John Deifendorf, a few days before his death, being sick, sent for one Douglass Ayres, a physician, and a son of his attending physician, and asked him if he would draw a deed of his property and gave him an old deed containing the description of the property in suit. He told Doctor Ayres that he wished to give all his property to his wife, real and Statement of case. personal, and stated to him what it was. That it was to be in consideration of three thousand dollars that she had paid to him and other considerations. Doctor Ayres drew the paper which is the subject of this controversy and it was executed by Deifendorf and delivered to the doctor, with instructions. to retain it for his wife until after his death and then have it recorded. After his death it was recorded. The Special Term found this paper not to have been a deed but an attempted testamentary disposition of the property and that Deifendorf died intestate and that defendants were entitled to the property subject to the plaintiff's dower therein. The General Term reversed the judgment upon the law and facts and granted a new trial. From that order defendants appealed to this court. E. Countryman for appellants. Both of the courts below erred in holding that the defendants were not entitled to a ruling dismissing the complaint upon the ground that the plaintiff was not shown to have been in actual possession of the premises for three years before the commencement of the action. (Code Civ. Pro. §§ 1638, 1639, 1642; Pearce v. Moore, 114 N. Y. 256; Churchill v. Onderdonk, 59 id. 134; Boylston v. Wheeler, 61 id. 521; Van Wagener v. Botsford, 13 Wkly. Dig. 381; Benson v. Townsend, 26 N. Y. S. R. 644, 647; Cleveland v. Crawford, 7 Hun, 616; Onderdonk v. Mott, 34 Barb. 106; Stevens Case, 84 N. Y. 296, 304, 305; P. Bank v. Mitchell, 73 id. 406, 415; Arnold v. Angell, 62 id. 508, 512; McMichael v. Kilmer, 76 id. 36; R. E. Bank v. Eames, 4 Abb. Ct. App. Dec. 83; Barnes v. Quigley, 59 N. Y. 265; Sanford v. Bennett, 24 id. 20; Benton v. Wickwire, 54 id. 226; Goillotel Case, 87 id. 441; People v. Supervisors, 43 id. 130; In re Miller, 110 N. Y. 216; Ely v. Holton, 15 id. 595, 596; People v. Supervisors, 67 id. 109; In re Peugnet, Id. 441; Craig v. Andes, 93 id. 406, 417; Sayre v. Wisner, 8 Wend. 661; Quackenbush v. Danks, 1 Den. 128; Dash v. Van Kleeck, 7 Johns. 478; People v. Ryder, 124 N. Y. 500; Van Horn Case, 57 id. 473.) Upon |