which the wheels of plaintiff's wagon dropped as they left the planking, thus causing the injury. There had been no formal dedication of the way to public use. Plaintiff was non-suited, on the grounds that the way was a private one, and that there was no duty on defendant to make or maintain an approach to it. Wm. S. Oliver, for applt. A. J. Lorish, for respt. Held, That legal dedication and acceptance of a public way may be inferred from continuous and 10 Allen, 290, distinguished. The evidence presented a fair question for the jury, whether or not plaintiff was guilty of contributory negligence. 76 N. Y., 329; 91 id., 303; 80 id., 622. Order reversed and new trial ordered, costs to abide event. Opinion by Bradley, J.; Smith, P. J., and Barker, J., concur; Haight, J., not sitting. ASSIGNMENT. PARTNER SHIP. uninterrupted use by the public N. Y. SUPREME COURT. GENERAL for twenty yesrs. 66 N. Y., 261; 11 East, 375, note; 6 Wend.. 657; 20 id., 116; 22 id., 450; 19 Barb., 179, 195; 51 id., 436; 61 N. Y., 448; 26 Barb., 630. See 10 How., 199; 37 Barb., 57; 66 N. Y., 261, 269; 3 Kent's Com., 451; 1 R. S., 521, 100; 44 Barb., 596. City of Oswego v. Oswego Canal, 6 N. Y., 257; Holdane v. Trustees of Cold Spring, 21 id., 474, distinguished. On this point there was evidence enough to take the case to the jury. The way was capable of being made a highway, although it was a cul de sac, 24 N. Y., 559; but the latter fact was a material one bearing on the question. Also held, Market street does not seem to have been out of repair, and defendant is not bound to provide facilities for going upon the street, and inconveniences occasioned by proper repair of the street are to be remedied by the abutting owners themselves. 45 N. Y., 129, will be applicable if the way is found to be a public one. Vol. 20.-No. 10a. TERM. FIFTH DEPT. Dennis McCarthy et al., respts., v. Leander Fitts et al., respts. Decided Oct., 1884. A partnership debt, although evidenced by the individual note of a member of the firm, is equitably payable out of the partnership property. Where one partner sells his interest to the other, who continues the business in the firm name, debts contracted for goods sold to the house afterwards are, as against other creditors, individual debts of the remaining partner. Appeal from judgment on Special Term decision upon a trial. Action to set aside as fraudulent a general assignment by defendant C. to defendant F. for benefit of creditors. C. began business in 1879 and the next year formed a partnership with his son under the firm name of "Jacob G. Conrad & Son." On March 7, 1881, the son sold all his interest to his father, who took possession and continued the business for himself, but in the name of "J. G. Conrad & Son," until April 30, 1881, when Judgment affirmed, with costs. Opinion by Smith, P. J.; Burker, Haight and Bradley, JJ., concur. he made the said assignment. Be- | ors, the debt of J. G. Conrad inditween February 18 and April 4, vidually. The son would probably 1881, plaintiffs sold said firm goods be liable to plaintiffs at law, but it on credit, and in June, 1881, re- is questionable whether they have covered judgment therefor against an equitable lien upon the partnerthe father individually, and the ship assets. father and son as such partners. The assignment was made with preferences, among them being a debt evidenced by a note dated July 6, 1880, for $1,000, payable in three months, to the order of Leander Fitts, the assignee, and signed by the assignor. The note N. Y. SUPREME COURT. GENERAL was given for money used in the partnership business, and all the preferred creditors were those who had furnished goods to the firm prior to the son's transfer to his father. The trial court found that the assignment was without fraud. Waters & McLennan, for applts. Proof which merely shows discrepancy in Howland & Wheeler, for respts. Held, That the debt of Fitts was in fact the debt of the firm, which distinguishes this case from Wilson v. Robertson, 21 N. Y., 587. See 4 Sand., 299; 3 Duer, 7; 6 id., 83; 3 Barb. Ch., 46. But assuming that the debt to Fitts is to be treated as the individual debt of J. G. Conrad, we think the judgment not erroneous. The son's transfer presumably vested the title to the partnership property in his father as his own private estate, free from any lien or equity in favor of partnership creditors. 32 N. Y., 65. And it does not appear that plaintiffs' debt, or if any how much of it, was contracted prior to said transfer. If they were not sold till after that date, the debt contracted for them was, as against other credit DOMICILE. SERVICE. TERM. FIFTH DEPT. George W. Huntley, respt., v. James E. Baker, applt. Decided Oct., 1884. Intention alone is not sufficient to change or create a domicile; the fact of residence must concur with the intent. the officer's return of service of a summons, which discrepancy does not invalidate the service but shows that it was properly made, is no impeachment of the service. Appeal from judgment on referee's report. Action on judgment of a Wisconsin court. The judge of that court, in November, 1881, issued a summons commanding that defendant, if found within the county, be summoned to appear, &c., to answer plaintiff to his damage $200. age $200. Upon it was indorsed the certificate of an officer that, defendant not being found, he served the summons by leaving a copy of it at defendant's usual place of abode in that county, in presence of defendant's daughter, she being one of defendant's family, and of suitable age and discretion, and that he informed her The question of defendant's civil status depended on his domicile. L. R., 1 H. L., 441; 23 Pick., 176. of its contents. On the return day | 661; 4 Exch., 290; 8 id., 638; L. plaintiff appeared, and his com- R., 9 Ex., 345; S. C., 10 Moak, plaint was on a note of defendant, 492; 18 How., U. S., 404; 95 U. who did not appear, and the judg- S., 714, 722, 734-5; 63 N. Y., 114, ment upon which this action was 126; 72 id., 218, 238; 53 How. Pr., brought was rendered against him. 108-9. The referee found that the judgment was duly rendered by the Wisconsin court having jurisdiction, and directed judgment against defendant for its amount. At the time of the service defendant was not in Wisconsin, nor was he in that State afterwards until after judgment was rendered, and he had no actual knowledge of the action or of the judgment until about the time this action was begun. The constructive service was in accordance with the Wisconsin statute. For several years before 1881 defendant's family lived and kept house in Wisconsin, and that was his home. In January, 1881, he procured work in Buffalo, in this State, and has since been engaged there. In May, 1881, he concluded to remove his family to Buffalo, and make that his place of residence, and in June following he went to Wisconsin intending to bring his family and household goods to Puffalo; but finding his wife in delicate health he returned without them. His family remained keeping house as before until November 20, 1881, when he removed them to Buffalo, where they have since resided. Wm. W. Lyon, for applt. Ernest K. Weaver, for respt. Held, That the Wisconsin court had jurisdiction. 4 Bing., 686; 2 Barn. & Adol., 951; 16 Q. B. (Ad. & Ell.), 717; 9 C. B. (M., G. & S.), Defendant's domicile having been in Wisconsin, the burden was on him to show that he had changed it, and when he had done so the new one prima facie would be that of his family although they may have continued in Wisconsin. 13 Mass., 501; 4 Lans., 161; 11 Pick., 410. But his intention alone was not sufficient to change or make a domicile; the fact of residence must concur with intent to produce that result. 1 Bosw., 673, 685; 53 N. Y., 556,561, 570; 10 Pick., 77; 4 Barb., 505, 519; 42 Vt., 350; 1 Am., 334–6; 1 Spear Eq., 1; 39 Am. Dec., 142; 17 N. H., 235; 43 Am. Dec., 597; 100 Mass., 167, 170; 4 Bradf., 127; 3 App. Cas., 336; 24 Moak, 234; 2 Kent Com., 431, notes. The question of domicile was one of fact, dependent upon all the circumstances. 53 N. Y., 556, 562; 12 Gray, 21, 23; 7 id., 299. We think the referee's conclusion should not be disturbed. The fact proved by defendant, that the summons was left in the presence of his wife, and the contents were disclosed to her, instead of to the daughter, does not so impeach the return as to impair jurisdiction. It proves a proper service under the statute. Judgment affirmed. Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ., concur. INJUNCTION. LEASE. N. Y. SUPREME COURT. GENERAL not long to run, an agreement was made by the defendant Harrison as the owner of the property, as an inducement for that sale, to execute and deliver a further lease to G. for three years from and after the expiration of the term created by the lease held by S. The stock and fixtures and this contract for the renewal of the lease were after Chas. McRobert, applt., v. Eliza ward sold and assigned to the T. Harrison et al., respts. Decided Oct. 31, 1884. When one person has taken a lease to which another is known to him to be equitably plaintiff. After that, and while the plaintiff was in possession under the unexpired lease, the defendant Harrison executed a lease to S., and, for the purpose of putting entitled he may be decreed, in an action brought for that purpose, to be a trustee for S. into possession of the property, the benefit of the party rightfully entitled, the summary proceedings for the as against him, to the use and occupancy of removal of the plaintiff were comthe property under the lease, but subject menced. The object of this action to the performance of its terms by him. When summary proceedings to evict a tenwas to secure a determination that, ant who is equitably entitled to a new lease in taking the lease, S. received it are brought in a court having no equitable as a trustee for plaintiff and to rejurisdiction for the purpose of putting into strain the removal of the plaintiff possession a new tenant who has taken a from the premises in the mean lease with knowledge of the equitable rights of the other, their prosecution may be enjoined in an action brought to obtain a decree declaring the second lessee to be a trustee for the first. Appeal from an order denying a motion for the continuance of an injunction restraining the defendants from the further prosecution of summary proceedings to evict the plaintiff from premises in the city of New York. In May, 1884, one S. was in possession of the premises in question under a lease executed by defendant Harrison expiring on July 1, 1884. S. entered into an agreement to sell out the stock and fixtures used in trade upon the premises, together with the lease, to one G., and as the lease at that time had time. Edward K. Jones, for applt. Lewis Johnston, for respt. Held, That where one person has taken a lease to which another is known to him to be equitably entitled it has been the practice of the court to convert the lessee into a trustee for the benefit of the party rightfully entitled, as against him, to the use and occupancy of the property under the lease, but subject to the performance of its terms by him. 4 Duer., 462, 469; 61 N.Y., 123, 129-30. That S. under the facts made to appear occupied this relation to plaintiff and that he should therefore be adjudged to hold the lease obtained by him. as a trustee for the benefit of the plaintiff so long as its terms should | sory note. It appeared that on be observed and its stipulations August 1, 1867, the defendants performed by him. N. Y. COURT OF APPEALS. Dillenbeck, respt., v. Dygert et al., admrs., et al., applts. Decided Nov. 25, 1884. Defendants and other stockholders of a factory executed a note, which was paid a year after maturity by S., one of the makers, who delivered it to plaintiff, to whom he was indebted, made payments thereon and afterwards became bankrupt. About the time of delivery of the note to plaintiff, S. and another person purchased the rights of all the other stockholders in the factory, assuming payment of this and all other debts of the company. In an action for contribution, Held, That although the note was extinguished as such by its payment by S., it remained in his hands as evidence of a right to contribution against his co-sureties, and that the delivery of the note to plaintiff passed this right to him. This action was brought to compel the defendants to contribute towards the payment of a promis and other stockholders in a cheese factory executed the note in suit. On August 21, 1869, a year after said note became due, S., one of the makers, paid it, and S. being indebted to plaintiff in the amount of the note, delivered it to him. For several years afterwards S. paid interest annually on the note, which payments were indorsed by plaintiff as interest on the note. On April 4, 1872, S. paid $100 of the principal of the note. It also appeared that, about the time S. delivered the note to plaintiff, S., with one G., purchased the interest of all the other stockholders in the factory and assumed to pay this and all other debts of the company. Plaintiff at all times treated the note as an obligation S. was individually liable to pay, and upon S. being declared a bankrupt he proved the note as a claim against his estate and received a dividend thereon which was credited on the note. No as signment was ever made to plaintiff of any cause of action for contribution. This action was commenced in November, 1876, and a verdict rendered for plaintiff. J. F. Parkhurst, for applts. M. Rumsey Miller, for respt. Held, No error; that although the note was extinguished as such by its payment by S., it remained in his hands evidence of a right to contribution against his cosureties, establishing both that they incurred the original obligation to contribute and the fact of payment by S., which made the |