obligation operative in his favor; that the delivery of the note to plaintiff passed to him the right of contribution. 3 M. & K., 183. Contribution is among sureties oniy, and presumes the payment and extinguishment of the debt by one for the benefit of all. It rests rather upon the equity of equality than contract, though at law to save the right a promise to contribute will be implied. 4 Johns. Ch., 334; 4 Edw. Ch., 64; 5 Beav., 278. The law sometimes steps in and makes agreements for parties which they did not mutually intend. 51 N. Y., 314; 21 id., 490; 56, id., 217; 25 id., 324; 7 Cow., Defendant takes its powers from Laws of 1867, Ch. 479, and Laws of 1880, Ch. 19. Pursuant to those statutes a sewer was built along Central avenue in Dunkirk and across several cross-streets. Relator's line, passes along Central avenue. The special assessors, appointed to assess and adjust the benefits, found the cost of construction under the cross streets to be $1,350, and of that sum they assessed $1,050 to the city and $300 to relator. Against that assessment relator protested, but the assessors sustained it. Relator appealed to the common council, which confirmed the assessment. Defendant was proceeding to collect the sums assessed when the writ of certiorari was issued to it, to which return was made to this court. Lorenzo Morris, for relator. Held, That relator's easement and structures in the street are real estate, and assessable as such for legitimate purposes. 46 N.Y., 46. The legislature may vest the city government with power to assess this property; and, to pay the authorize the taxation of those cost of local improvements, may only whose property is benefited, and the apportionment of the bur den. 4 N. Y., 419; 74 id., 183. Power to assess relator for any portion of the sewer can only come from authority given by legislative enactment. 4 Hill, 76; 71 N.Y., 309. The assessment was right. See 72 N.Y., 527; Laws of 1867, Ch. 479, Tit. 12, §3; Laws of 1880, Ch. 19, Tit. 12, § 16. The statute provides that the cost of that part of a sewer which passes under cross streets shall be assessed to the city or to such property in those cross streets as may be owned and controlled by corporations or individuals. Held, That the intention was not to restrict the assessment to one only of the parties named, but to assess either or both. "Or" may be construed to mean "and." 3 Durn. & E., 470; 6 Johns, 54; 1 Wend., 396; 19 N.Y., 364; 24 id., 463; 91 id., 574, 584-5; 22 How. Pr., 169; 32 Barb., 384; 15 Johns., 358. Assessment and confirmation affirmed, with costs. Opinion by Bradley, J.; Smith, P. J., and Haight J., concur; Barker, J., not sitting. MORTGAGE. FRAUD. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. George Waterman et al., respts., v. Gideon Webster et al., applls. Decided Oct., 1884. Appeal from judgment on Special Term decision and referee's report. Action to cancel of record a satisfaction of, and to foreclose a mortgage made by defendant Webster to defendant Jasper Waterman. James Waterman and Jasper, his brother, owned the premises in question subject to their mother's dower. Plaintiffs were James' minor children. Jasper, in behalf of himself, James, and their mother, sold the premises to Webster, who gave back a purchase money mortgage, dated November 30, 1857, in which Jasper was named as party of the second part, and by which the interest was made payable annually to the mother during her life, and on her death a certain part of the principal was to go to Jasper, and the rest to be distributed to plaintiffs when they respectively should come of age, or to their survivor or survivors, and if they all died under age then it should be payable to James, and if he was dead to his brother and sisters equally. The mortgage further provided that such share should be secured on real estate for plaintiffs' 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 back in which A. was named as second party. The mortgage provided for pay ment of interest to the mother, and on her death a portion of the principal to A. and the rest to be distributed to B.'s children as they respectively came of age. Ultimately the principal was paid to A. and he discharged the mortgage. Held, That payment to A. of the money belonging to B.'s children was unlawful, and A.'s discharge of the mortgage was inoperative. before said sum shall be payable, and that the same be payable in four years from date of the mortgage, and if the mother lived longer, then on her decease. There was the usual power of sale running to Jasper, his executors, etc. The mother died May 3, 1870, Jasper's share was paid to his assignee, and the rest was paid by the mortgagor to Jasper, who acknowledged satisfaction of the mortgage. Plaintiffs were then of age. C. D. Murray, and Morris & Lambert, for applts. W. Woodbury, for respts. Held, Jasper was not a trustee for plaintiffs. It was the mortgagor's duty to pay the money to fully paid to Jasper, and that the satisfaction was ineffectual to discharge the mortgage. Judgment affirmed, with costs. Opinion by Bradley, J.; Smith, P. J. and Corlett, J., concur; Barker, J., not sitting. DEEDS. REVOCATION. plaintiffs and their right to receive N. Y. SUPREME COURT. it. So the mortgage declared. The common law rule that in respect to a deed inter partes a stranger could not avail himself of a stipulation therein in his favor was technical and does not exist in this State. 20 N. Y., 268; 24 id., 178; 41 id., 179; 48 id., 253. The power of sale, so far as it related to the fund secured for plaintiffs, had reference to a proceeding during their minority. After that the execution of the power would be for their benefit and subject to their control after payment to Jasper of his share. See 1 R. S., 737, § 133. Plaintiffs were practically made parties to the mortgage as effectually as the assignment by a creditor of a debt secured by mortgage would give that relation to the assignee. 7 Cow., 747; 64 N. Y., 44; 74 id., 354-5; 21 La. Ann., 529. Jasper had no more right than a stranger to receive payment of plaintiff's money and satisfy the mortgage, and so the mortgagor was advised by its terms. See 5 Cow., 302; 9 Wend., 80; 23 Barb., 461; 1 R. S., 761, §28; 13 Hun, 475; 47 N. Y., 308. The evidence justified the conclusion that the money was unlaw GENERAL TERM. FOURTH DEPT. Thomas Houghton, applt., v. Hannah Houghton et al, respts. Decided Oct., 1884. Where a man, in what he believes to be his last sickness and in view of approaching death, deeds his property to his wife through a third party, without consideration, at his wife's request, she representing to him that by so doing he will save the expense of administration on his estate, and he subsequently recovers, he can maintain an action to revoke said deed, and a complaint alleging said facts states a good cause of action. Appeal from judgment, entered on the decision of the court at Special Term. The complaint stated that on May 15, 1874, plaintiff was the owner of certain land therein described; that on that day, being very sick and not expecting to live and in view of death he was induced and persuaded to execute, acknowledge and deliver to defendant M. a deed of said land so that he might deed the same to plaintiff's wife, the defendant Hannah; that there was no consideration for said deed; that it was done for the purpose of passing the title to said property to Hannah; that on the same day M. * executed and delivered to defendant Hannah a deed of said premises, the consideration expressed in each deed being $1; that plaintiff deeded said property "for no other consideration than that he believed he was about to die; that the matter was talked over between himself and defendant Hannah at the time aforesaid; that she told plaintiff that she believed he was in his last sickness and could not long survive and that by deeding the property to her it would save the expense of an administration upon his estate; * that said defendant Hannah said that he should not want for anything as long as he lived; that subsequently Hannah deeded the property, without consideration, to her son, defendant John, who took the same with knowledge of all the circumstances of the transfer; that plaintiff has demanded of each of them a reconveyance and notified them that he revoked his conveyance and desired the property back and they each refuse to reconvey or to give him possession; that he has received board a part of the time, but of poor quality and insufficient, and has been ill-treated by said Hannah and John. Judgment was demanded declaring the deeds null and void or directing a reconveyance and for an accounting and for general relief. The court directed a dismissal of the complaint as not stating facts sufficient to constitute a cause of action. W. E. Scripture, for applt. Vol. 20.-No. 10b. Held, Error; that upon the case. presented by the complaint plaintiff was entitled to relief and that, therefore, a cause of action was stated. There are many English cases on the subject of voluntary settlements of real estate where there was no power of revocation. The absence of this is deemed a suspicious circumstance, and in such cases the rule seems to be that very slight evidence of mistake, misapprehension or misunderstanding on the part of the settler will be laid hold of in a court of equity to set aside the deed. 1 Perry on Trusts, 2d Ed., 96, Note 2. See 30 Beav.. 243; L. R., 9 Eq., 44. See also 9 C. E. Green, 243. The general rule is that an act done, or a contract made, under a mistake or in ignorance of a material fact is voidable and relievable in equity, 1 Story Eq., § 140, and an action lies for its rescission, 4 Lans., 41; although in general it cannot be reformed unless the mistake is material. This principle includes executed as well as executory contracts, 1 Story Eq., § 159, and for the purpose of determining upon such mistake parol evidence is in equity admissible to qualify, correct or defeat the terms of written instruments. Story Eq., § 1531; 2 Whart. Ev., § 1054. What will constitute a material fact, a mistake of which will furnish a basis for relief in equity, depends largely upon the circumstances of each particular case. Here is a complaint in which it is alleged that plaintiff, while very case. Judgment reversed and new trial granted, costs to abide event. Opinion by Merwin, J; Hardin, P. J., concurs; Follett, J., absent. FIRE INSURANCE. TERM. FIFTH DEPT. John Hodge, respt., v. The Security Ins. Co. of New Haven, applt. Decided Oct., 1884. sick, in view of death, and be- | English cases and the New Jersey lieving that he was in his last sickness, and for no other consideration whatever, made to his wife a conveyance of apparently all his property; that the matter was talked over between them, the wife telling plaintiff that she believed he was in his last sickness and could not long survive and that by deeding the property to N. Y. SUPREME COURT. GENERAL her the expense of an administration upon his estate would be saved. No fraud or undue influence is in terms alleged, but it is stated generally that plaintiff was induced and persuaded to give the deed and that the wife told plaintiff that he should not want for anything for his comfort as long as he lived. According to these allegations it is very apparent that the the expectation speedy death was the most material circumstance in the transaction, and that not only plaintiff, but his wife, supposed that plaintiff's sickness was such that death would speedily result and, both acting on that belief, the deed was given. In this both were mis'aken, and the wife is now, according to the complaint, seeking to take an unconscionable advantage of a mistake that she not only participated in but encouraged. would present a basis for relief on the ground of mutual mistake. of This It is also fairly inferable from the allegations of the complaint that plaintiff did not intend to make his deed irrevocable only in case of his death, and that would furnish a basis for the action on the grounds recognized in the Plaintiff applied for insurance to H., an in- Appeal from judgment on verdict at Circuit. Plaintiff applied to H., an insurance agent of Lockport, for insurance on his opera house block in that city. H. spoke of the matter to E., a broker in Buffalo, who accordingly applied for the policy to defendant's agents at Buffalo, and they issued it and E. handed it to H., who delivered it to plaintiff. The agents at first objected to taking the risk, but finally told E. they would take it conditionally, subject to approval of the company, and that if the company disapproved it the policy |