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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 judg The question of defendant's
ment was duly rendered by the civil status depended on his dom-
Wisconsin court having jurisdicicile. L. R., 1 H. L., 441; 23 Pick.,
tion, and directed judgment 176.

against defendant for its amount. Defendant's domicile having
At the time of the service defend been in Wisconsin, the burden
ant was not in Wisconsin, nor was was on him to show that he had
he in that State afterwards until changed it, and when he had done
after judgment was rendered, and so the new one prima facie would
he had no actual knowledge of the be that of his family although
action or of the judgment until they may have continued in Wis-
about the time this action was be-consin. 13 Mass., 501; 4 Lans.,
gun. The constructive service was 161; 11 Pick., 410.

161; 11 Pick., 410. But his intenin accordance with the Wisconsin tion alone was not sufficient to statute. For several years before change or make a domicile; the 1881 defendant's family lived and fact of residence must concur with kept house in Wisconsin, and that intent to produce that result. 1 was his home. In January, 1881,

In January, 1881, Bosw., 673, 685; 53 N.Y., 556,561, he procured work in Buffalo, in 570; 10 Pick., 77; 4 Barb., 505, this State, and has since been en- 519; 42 Vt., 350; 1 Am., 334-6; 1 gaged there. In May, 1881, he Spear Eq., 1; 39 Am. Dec., 142; concluded to remove his family to 17 N. II., 235 ; 43 Am. Dec., 597; Buffalo, and make that his place 100 Mass., 167, 170; 4 Bradf., 127; of residence, and in June following 3 App. Cas., 336; 24 Moak, 234; 2 he went to Wisconsin intending Kent Com., 431, notes. to bring his family and household The question of domicile was goods to Luffalo; but finding his one of fact, dependent upon all wife in delicate health he returned the circumstances. 53 N. Y., 556, without them. His family re- 562; 12 Gray, 21, 23; 7 id., 299. mained keeping house as before We think the referee's conclusion until November 20, 1881, when he should not be disturbed. removed them to Buffalo, where The fact proved by defendant, they have since resided.

that the summons was left in the Wm. W. Lyon, for applt. presence of his wife, and the conErnest K. Weaver, for respt. tents were disclosed to her, in

Held, That the Wisconsin court stead of to the daughter, does not had jurisdiction. 4 Bing., 686; 2 so impeach the return as to imBarn. & Adol., 951 ; 16 Q. B. (Ad. pair jurisdiction.

It proves a & Ell.), 717; 9 C. B. (M., G. & S.), proper service under the statute.

Judgment affirmed.

not long to run, an agreement was Opinion by Bradley, J.; Smith, made by the defendant Harrison P. J., Barker and Haight, JJ., as the owner of the property, as an concur.

inducement for that sale, to exe. cute and deliver a further lease to

G. for three years from and after INJUNCTION. LEASE.

the expiration of the term created N.Y. SUPREME COURT. GENERAL by the lease held by S. The stock TERM. FIRST DEPT.

and fixtures and this contract for

the renewal of the lease were afterChas. McRobert, applt., v. Eliza ward sold and assigned to the T. Harrison et al., respts.

plaintiff. After that, and while the Decided Oct. 31, 1884.

plaintiff was in possession under

the unexpired lease, the defendWhen one person has taken a lease to which

ant Harrison executed a lease to another is known to him to be equitably 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 ten

was 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 lease with knowledge of the equitable rights from the premises in the meanof the other, their prosecution may be en

time. joined in an action brought to obtain a de Edward K. Jones, for applt. cree declaring the second lessee to be a trus

Lewis Johnston, for respt. tee for the first.

Held, That where one person Appeal from an order denying has taken a lease to which another a motion for the continuance of an is known to him to be equitably injunction restraining the defend- entitled it has been the practice ants from the further prosecution of the court to convert the lessee of summary proceedings to evict into a trustee for the benefit of the the plaintiff from premises in the party rightfully entitled, as against city of New York.

him, to the use and occupancy of In May, 1884, one S. was in pos- the property under the lease, but session of the premises in question subject to the performance of its under a lease executed by defend terms by him. 4 Duer., 462, 469; 61 ant Harrison expiring on July 1, N.Y., 123, 129-30. That S. under 1884. S. entered into an agreement the facts made to appear occupied to sell out the stock and fixtures this relation to plaintiff and that used in trade upon the premises, he should therefore be adjudged together with the lease, to one G., to hold the lease obtained by him and as the lease at that time had 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 stipnlations August 1, 1867, the defendants performed by him.

and other stockholders in a cheese That the court in which the sum factory executed the note in suit. mary proceedings were pending On August 21, 1869, a year after bas no equitable jurisdiction, and said note became due, S., one of they could not be resisted there. the makers, paid it, and S. being fore upon the ground that S. was indebted to plaintiff in the amount a trustee for the benefit of the of the note, delivered it to him. plaintiff and for that reason a case For several years afterwards S. was presented for the equitable paid interest annually on the note, interference of this court by in which payments were indorsed by junction to restrain their prosecu- plaintiff as interest on the note. tion. 20 Hun, 440.

On April 4, 1872, S. paid $100 of Order reversed and injunction the principal of the note. It also granted.

appeared that, about the time S. Opinion by Daniels, J.; Davis, delivered the note to plaintiff, S., P. J., and Brady, J., concur.

with one G., purchased the in

terest of all the other stockholders JOINT DEBTORS. CONTRI

in the factory and assumed to pay

this and all other debts of the BUTION

company. Plaintiff at all times N. Y. COURT OF APPEALS.

treated the note as an obligation Dillenbeck, respt., v. Dygert S. was individually liable to pay, et al., admrs., et al., applts. and upon S. being declared a Decided Nov. 25, 1884.

bankrupt he proved the note as a

claim against his estate and reDefendants and other stockholders of a fac-ceived a dividend thereon which tory executed a note, which was paid a

was credited on the note. year after maturity by S., one of the makers, who delivered it to plaintiff

, to signment was ever made to plainwhom he was indebted, made payments tiff of any cause of action for conthereon and afterwards became bankrupt. tribution. This action was comAbout the time of delivery of the note to plaintiff, S. and another person pur- yerdict rendered for plaintiff.

menced in November, 1876, and a chased the rights of all the other stockholders in the factory, assuming payment

J. F. Parkhurst, for applts. of this and all other debts of the company. M. Rumsey Miller, for respt. In an action for contribution, Held, That

Held, No error; that although although the note was extinguished as such

the note was extinguished as such by its payment by S., it remained in his hands as evidence of a right to contribu: by its payment by S., it remained tion against his co-sureties, and that the in his hands evidence of a right delivery of the note to plaintiff passed this to contribution against his coright to him.

sureties, establishing both that This action was brought to com- they incurred the original obligapel the defendants to contribute tion to contribute and the fact of towards the payment of a promis payment by S., which made the

No as

obligation operative in his favor ; Defendant takes its powers from that the delivery of the note to Laws of 1867, Ch. 479, and Laws plaintiff passed to him the right of of 1880, Ch. 19. Pursuant to those contribution. 3 M. & K., 183. statutes a sewer was built along

Contribution is among sureties Central avenue in Dunkirk and oniy, and presumes the payment across several cross-streets. Reand extinguishment of the debt by lator's line passes along Central one for the benefit of all. It rests avenue. The special assessors, rather upon the equity of equality appointed to assess and adjust the than contract, though at law to benefits, found the cost of consave the right a promise to con struction under the cross streets to tribute will be implied. 4 Johns. be $1,350, and of that sum they Ch., 334; 4 Edw. Ch., 64; 5 Beav., assessed $1,050 to the city and $300 278.

to relator. Against that assessThe law sometimes steps in and ment relator protested, but the makes agreements for parties assessors sustained it. Relator which they did not mutually in appealed to the common council, tend. 51 N. Y., 314; 21 id., 490; which confirmed the assessment. 56, id., 217; 25 id., 324; 7 Cow., Defendant was proceeding to col14.

lect the sums assessed when the Judgment of General Term, writ of certiorari was issued to it, affirming judgment on verdict for to which return was made to this plaintiff, affirmed.

court. Opinion by Finch, J. All con

Lorenzo Morris, for relator. cur, except Ruger, Ch. J., dissenting, and Rapallo, J., not voting.

Walter A. Holt, for deft.

Held, That relator's easement

and structures in the street are ASSESSMENT. STREET RAILWAY.

real estate, and assessable as such

for legitimate purposes. 46 N.Y., N.Y. SUPREME COURT. GENERAL 46. The legislature may vest the

TERM. FIFTH DEPT. city government with power to as. The People ex rel. The Dunkirk

sess this property; and, to pay the

cost of local improvements, may & Fredonia RR. Co. v. The City

authorize the taxation of those of Dunkirk.

only whose property is benefited, Decided Oct., 1884.

and the apportionment of the burThe city of Dunkirk has power to assess a

den. 4 N. Y., 419; 74 id., 183. street railway on its structures for a share Power to assess relator for any of the cost of a sewer laid in the street portion of the sewer can only come through which the railway runs.

from authority given by legislative Case arising on return to writ of enactment. 4 Hill, 76 ; 71 N.Y.,

rtiorari to review confirmation 309. by common council of Dunkirk of

The assessment was right. See an assessment.

72 NÀY., 527; Laws of 1867, Ch.

per, his


479, Tit. 12, S3; Laws of 1880, Ch. Appeal from judgment on Spe19, Tit. 12, S 16.

cial Term decision and referee's The statute provides that the report. cost of that part of a sewer which Action to cancel of record a passes under cross streets shall be satisfaction of, and to foreclose a assessed to the city or to such mortgage made by defendant Webproperty in those cross streets as ster to defendant Jasper Watermay be owned and controlled by man. James Waterman and Jascorporations or individuals.

his brother, owned the Held, That the intention was not premises in question subject to to restrict the assessment to one their mother's dower. Plaintiffs only of the parties named, but to were James' minor children. assess either or both. “Or” may Jasper, in behalf of himself, be construed to mean "and.” 3 James, and their mother, sold the Durn. & E., 470 ; 6 Johns, 54 ; 1 premises to Webster, who gave Wend., 396 ; 19 N.Y., 364; 24 id., back a purchase money mortgage, 463 ; 91 id., 574, 584-5; 22 How. dated November 30, 1857, in which Pr., 169; 32 Barb., 384; 15 Johns., Jasper was named as party of the 358.

second part, and by which the Assessment and confirmation

and confirmation interest was made payable annu. affirmed, with costs.

ally to the mother during her life, Opinion by Bradley, J.; Smith, and on her death a certain part of P.J., and Haight J., concur; Bar- the principal was to go to Jasper, ker, J., not sitting.

and the rest to be distributed to
plaintiffs when they respectively

should come of age, or to their MORTGAGE. FRAUD.

survivor or survivors, and if they N. Y. SUPREME COURT. GENERAL all died under age then it should TERM. FIFTH DEPT.

be payable to James, and if he

was dead to his brother and sisters George Waterman et al., respts., equally. The mortgage further v. Gideon Webster et al., applts.

provided that such share should Decided Oct., 1884.

be secured on real estate for plain

tiffs' benefit ; that the securities A. and B., brothers, owned certain premises be prepared ready to execute

subject to the dower of C., their mother;
D. bought the premises, giving a mortgage before said sum shall be payable,
back in which A. was named as second and that the same be payable in
party. The mortgage provided for pay- | four years from date of the mort-
ment of interest to the mother, and on her

gage, and if the mother lived
death a portion of the principal to A. and
the rest to be distributed to B.'s children longer, then on her decease. There
as they respectively came of age. Ulti was the usual power of sale run-
mately the principal was paid to A. and he ning to Jasper, his executors, etc.
discharged the mortgage. Held, That pay. The mother died May 3, 1870,
ment to A. of the money belonging to B.'s
children was unlawful, and A.'s discharge Jasper's share was paid to his
of the mortgage was inoperative.

assignee, and the rest was paid by

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