Opinion of the Court.

rights of appellant and his wife; but we do not think so. Whether the plat was a statutory plat or not, as to which some issue is made by the answer, the proofs establish such a dedication as created an easement in the petitioner, the existence of which Gormley was estopped to deny, and which the court was justified in protecting. Maywood Co. v. Village of Maywood, 118 Illinois, 61; Zine Company v. City of La Salle, 117 Illinois, 411; Littler v. City of Lincoln, 106 Illinois, 353; Hamilton v. Chicago, Burlington &c. Railroad, 124 Illinois, 235.

The right of way, as appurtenant to these blocks and lots, passed to the purchasers under the sale upon the trust deed, which was executed by Gormley and his wife, and by which both had released the homestead claim, and the decree recognized the fee as still in Gormley subject to the burden thus imposed. Trickey v. Schlader, 52 Illinois, 78; Kittle v. Pfeiffer, 22 California, 485.

As to the remaining errors assigned, we are of opinion that the court correctly held the second ordinance duly annulled, and the easement as existing in the petitioner, so far as respected the property described in the first of the two ordinances referred to, and properly granted the writ of assistance to put the petitioner into possession of his blocks and lots as prayed; and while the bill did not specifically pray for similar relief in respect to the streets in question, such relief was agreeable to the case made by the bill, and could be awarded as within the prayer for general relief. The writ of assistance was simply in effectuation of the decree, and was in accordance with the recognized practice in equity and the ninth equity rule. We are satisfied upon the whole case that the Circuit Court committed no error, and the decree will therefore be

Affirmed.

Citations for Plaintiff in Error.

PENFIELD v. CHESAPEAKE, OHIO AND SOUTHWESTERN RAILROAD COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.

66

No. 187. Argued January 30, 1890. Decided March 17, 1890.

In section 90 of the New York Code of Civil Procedure it is provided that 'where a cause of action accrues against a person who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative after the expiration of the time limited by the laws of his residence for bringing a like action, except by a resident of the State, and in one of the following cases: . 2. Where before the expiration of the time so limited, the person, in whose favor it originally accrued, was, or became, a resident of the State, etc.; " Held, following the decisions of the courts of the State of New York in parallel cases, that this statute contemplates that the plaintiff shall be an actual resident in the State, and that he does not become such by sending his family to the State of New York from another State, in which he and they were residing, with the intent that they should reside there, but remaining himself in the other State.

THE case is stated in the opinion.

Mr. Rufus M. Williams, for plaintiff in error, cited, among other cases: Putnam v. Johnson, 10 Mass. 488; Blanchard v. Stearns, 5 Met. 298; Holmes v. Greene, 7 Gray, 299; Crawford v. Wilson, 4 Barb. 504; Fry's Election Case, 71 Penn. St. 302; State v. Hallett, 8 Alabama, 159; Dale v. Irwin, 78 Illinois, 170; Vanderpoel v. O'Hanlon, 53 Iowa, 246; Moorehouse v. Lord, 10 H. L. Cas. 272; Whicker v. Hume, 7 H. L. Cas. 124; Lord v. Colvin, 4 Drew. 366; Mitchell v. United States, 21 Wall. 350; Exeter v. Brighton, 15 Maine, 58; Shaw V. Shaw, 98 Mass. 158; State v. Aldrich, 14 R. I. 171; Shattuck v. Maynard, 3 N. II. 123; Long v. Ryan, 30 Gratt. 718; Cohen v. Daniels, 25 Iowa, 88; Fitzgerald v. Arel, 63 Iowa, 104; Boucicault v. Wood, 2 Bissell, 34; Doyle v. Clark, 1 Flipp. 536; Abington v. North Bridgewater, 23 Pick. 170; Thorndike v. Boston, 1 Met. 242; Collester v. Hailey, 6 Gray, 517; Langdon v. Doud, 6 Allen, 423; S. C. 83 Am. Dec. 641; Hallett v. Bassett, 100 Mass. 167; Kennedy v. Ryal, 67 N. Y.

Opinion of the Court.

379; Reed's Appeal, 71 Penn. St. 378; Tyler v. Murray, 57 Maryland, 418; Talmadge v. Talmadge, 66 Alabama, 199; Campbell v. White, 22 Michigan, 178; Chariton County v. Moberly, 59 Missouri, 238; Desmare v. United States, 93 U. S. 605; White v. Brown, 1 Wall. Jr. C. C. 217; Church v. Rowell, 49 Maine, 367; Gilman v. Gilman, 52 Maine, 165; S. C. 83 Am. Dec. 502; Report of the Judges, 5 Met. 587; McDaniel v. King, 5 Cush. 469; Otis v. Boston, 12 Cush. 44; Briggs v. Rochester, 16 Gray, 337; Wilson v. Terry, 11 Allen, 206; Hindman's Appeal, 85 Penn. St. 466; State v. Grizzard, 89 N. C. 115; Kellogg v. Oshkosh, 14 Wisconsin, 623; Hall v. Hall, 25 Wisconsin, 600; Kellogg v. Supervisors, 42 Wisconsin, 97; Morgan v. Nunes, 54 Mississippi, 308; Shepherd v. Cassiday, 20 Texas, 24; Cross v. Everts, 28 Texas, 523; Dupuy v. Wurtz, 53 N. Y. 556; Harris v. Firth, 4 Cranch C. C. 710; Hayes v. Hayes, 74 Illinois, 312; Littlefield v. Brooks, 50 Maine, 475; Mills v. Alexander, 21 Texas, 154; Jennison v. Hapgood, 10 Pick. 77; Bassett v. Wheeler, 84 N. Y. 468; Frost v. Brisbin, 19 Wend. 11; S. C. 32 Am. Dec. 423; Boardman v. House, 18 Wend. 512; Burrows v. Miller, 4 How. Pr. (N. Y.) 349; Isham v. Gibbons, 1 Bradf. (N. Y.) 69; Matter of Thompson, 1 Wend. 43.

Mr. B. F. Tracy, (with whom was Mr. W. W. MacFarland on the brief,) for defendant in error, cited: St. Clair v. Cox, 106 U. S. 350; Burnham v. Rangley, 1 Woodb. & Min. 7, 11; Frost v. Brisbin, 19 Wend. 11; S. C. 32 Am. Dec. 423; Matter of Thompson, 1 Wend. 43; Haggart v. Morgan, 5 N. Y. 422; S. C. 55 Am. Dec. 350; Bell v. Pierce, 51 N. Y. 12; Union Hotel Co. v. Hersee, 79 N. Y. 454; Queen v. Vice-Chancellor &c., L. R. 7 Q. B. 471; Attorney General v. McLean, 1 H. & C. 750; Blackwell v. England, 8 Ell. & Bl. 541; Hewer v. Cox, 3 El. & El. 428; Board of Supervisors v. Davenport, 40 Illinois, 197; Storm v. Smith, 43 Mississippi, 497.

MR. JUSTICE HARLAN delivered the opinion of the court. This action was brought in March, 1884, in the Supreme Court of New York, Kings County, by the plaintiff in error against the Chesapeake, Ohio and Southwestern Railroad

Opinion of the Court.

Company, a corporation created under the laws of Kentucky and Tennessee. Its object was to recover damages alleged to have been sustained by the plaintiff on the 30th of November, 1882, in the State of Tennessee, in consequence of the careless, negligent and wrongful conduct of the defendant and its servants, while he was a passenger upon one of its trains. Upon the petition of the company the action was removed into the Circuit Court of the United States for the Eastern District of New York, where, after the evidence was concluded, the jury, under the direction of the court, returned a verdict for the defendant. This direction was given because, in the opinion of that court, the plaintiff's cause of action was barred by the statutes of limitation of New York.

The statutes here referred to are in these words:

"The following actions must be commenced within the following periods, after the cause of action has accrued. Within three years: An action to recover damages for a personal injury, resulting from negligence." N. Y. Code of Civil Procedure, §§ 380, 383.

“Where a cause of action which does not involve the title to, or possession of, real property within the State, accrues against a person who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time limited by the laws of his residence for bringing a like action, except by a resident of the State, and in one of the following cases:

"1. Where the cause of action originally accrued in favor of a resident of the State.

"2. Where, before the expiration of the time so limited, the person, in whose favor it originally accrued, was, or became, a resident of the State; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State" Ib. § 390.

A motion for new trial having been overruled, a judgment was rendered for the company. That judgment is here for review, the only error assigned being the court's instruction to find for the defendant.

VOL. CXXXIV-23

Opinion of the Court.

It was agreed that at the trial the plaintiff gave testimony tending to show the following facts: He lived in Harlem, New York, when a boy of fourteen years of age, married in Brooklyn, removed from that city to Michigan, from the latter State to Illinois, and from Illinois to St. Louis, Missouri, where he had resided for about one year prior to the accident. At the time of the accident he was a travelling salesman for an agent of the Michigan Salt Association located in St. Louis, and when the trial took place, was engaged in that capacity. When injured, he resided in St. Louis, with his wife and children. In August, 1883, he "sent his wife and children to Brooklyn, New York, where they took up their residence and commenced to keep house, and where they have resided ever since August, 1883, and do now reside." The plaintiff himself did not go to Brooklyn with his family in August, 1883, nor did he join them there until December 31, 1883, or January 1, 1884. "He remained with his family in Brooklyn for about three months, when he again went to St. Louis, and from there went travelling for said agency as said salesman." He "again joined his wife and children the next December, 1884, and remained with them some three months, when he again went out on the road." He joined his family in October, 1885, and was with them at the time of the trial. He lived with them when at home, and always lived with his wife since their marriage, except when absent on business. The attorney for the defendant addressed the plaintiff at his place of business in St. Louis, up to December 28, 1883, on which day the latter notified him by letter of his change of address to Brooklyn, for which place he was in the act of starting to join his family.

Upon the issue as to the residence of her husband, Mrs. Penfield's evidence was, that they had lived together constantly for about twenty-two years, and she was always with him except when he was travelling. Having stated that at the time of the accident, and during the sickness of her husband, resulting from the injuries received by him, they resided at St. Louis, her examination continued: "Q. How long did you continue to live there yourself after this sickness? A. Until the next August. Q. What year was that? A. 1883. Q. In