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ouster, in contemplation of law. But this need not have been actual or physical, for if the tenant yields his possession, in pursuance of the judgment of a court of competent jurisdiction, to the person adjudged to be the real owner of the paramount title, it is, in law, an eviction, as effectual as though he were actually put off the premises. To refuse to yield possession when so commanded by a proper decree would not be good sense, nor would it, in law, avail him more than if he acquiesced in the judg. ment of the court, and voluntarily obeyed its mandate. Insurance Co. v. Sherman, 46 N. Y. 370; Hunt v. Amidon, 4 Hill, 345; St. John v. Palmer, 5 Hill, 599; Simers v. Saltus, 3 Denio, 214; Dyett v. Pendleton, 8 Cow. 727, 730; Greenvault v. Davis, 4 Hill, 643. He did right, therefore, to surrender his possession without waiting for the issue of a writ of assistance. An eviction by title paramount, before the rent falls due, discharges the tenant from its payment. The consideration for the obligation to pay rent is the enjoyment of the land. When the consideration ceases the obligation falls. 1 Kent, Comm. 464. It follows that there should have been no recovery in the court below, and that the judgment must be reversed, with costs.
In re TOWN OF HECTOR.
In re ZEBEDIO et al.
(Schuyler County Court. July 15, 1893.) PAUPERS-SETTLEMENT-RAILROAD LABORERS—“INHABITANTS."
Italian laborers, who come to the United States in search of work, leaving their families in Italy, and are employed in constructing railroads, liable to be discharged at any time, and free to leave their employment when they see fit, and living in rough shanties built by the railroad contractors, do not gain a settlement in a town in which they work for a year, under 3 Rev. St. (Banks' 8th Ed.) p. 2111, $ 29, providing that every person of full age, who shall be "a resident and inhabitant of any town for one year," shall be deemed settled in said town. Appeal from superintendent of the poor.
The town of Hector was adjudged liable for the support of Nunzio Zebedio and Julian Depowel, paupers, and appeals. Reversed.
C. H. Everts, for appellant.
KEELER, J. In the absence of express statutory provisions, there is no obligation or duty imposed upon towns to contribute to the support of persons residing within their limits. People v. Supervisors of Schoharie Co., 121 N. Y. 345, 24 N. E. Rep. 830. That both of these young men were poor persons or paupers, and that the officials did right in extending them aid, is apparent from even a cursory reading of the statute. 3 Rev. St. (Banks' 8th Ed.) p. 2106, § 14; Goodale v. Lawrence, 88 N. Y. 517. Supt. Shulen burgh found them at the Watkins depot, in the town of Dix, with their mangled limbs, and without a cent of money. In the language
of the statute, they were then "disabled and enfeebled so as to be unable by work to maintain themselves," and were “poor persons.” The s'iperintendent promptly did his duty in the premises,-found them a place to board and lodge, and provided them with a phy. sician and surgeon and nursing care. The two young men had been in the town of Hector for over a year, and had been brought from there, after their injuries, into the town of Dix. intendent, ascertaining that the town of Hector, through its overseers of the poor, claimed that the men had not gained a settlement in that town, and were not chargeable to that town, discontinued his furnishing them on behalf of the county, and thencefor. ward they were cared for by the town of Dix, through its poor authorities. The proper notice and denial were given and received pursuant to section 32, Rev. St. (Banks' 8th Ed.) p. 2111, and a hearing had as to the settlement of the men, as between the towns of Dix and Hector, before the superintendent, who made and filed his decision November 14, 1892, adjudging the two men to have a legal settlement in, and a charge upon, the town of Hector. The cases come before this court on appeal from said adjudication of Supt. Shulenburgh by the town of Hector.
It cannot be for a moment claimed, nor was it claimed by any counsel upon the hearing in this court, that either of these men had any legal settlement in the town of Dix. Their first appearance in that town was, in the condition before stated, on June 29, 1892. The sole question presented is, had these young men gained a legal settlement, under our poor laws, in the town of Hector? In Schuyler county the distinction between town and county poor has not been abolished. The towns continue liable, respectively, to support their own poor. In such case the statute provides with reference to support as follows, (3 Rev. St., Banks' 8th Ed., p. 2111, § 31:)
"Every poor person shall be supported in the town or county where he may be, as follows: (1) If he has gained a settlement in any town in such county, he shall be maintained by such town."
The second subdivision provides that if such poor person has not gained a settlement in any town of the county in which he shall become poor, sick, or infirm, he shall be supported and relieved by the superintendent of the poor at the expense of the county. The logic of the statute compels us again to the question, had these men gained a legal settlement in the town of Hector?
If they had, the statute says that they “shall be maintained by such town.” Whether they had gained such settlement in Hector depends upon the construction given to section 29, same statute. This section reads as follows:
"Every person of full age, who after this chapter shall commence and take effect, shall be a ‘resident and inhabitant of any town for one year,
shall be deemed settled in such town." It will be seen that the whole question turns upon the further question, whether or not the young men were "residents and inhah itants” of the town of Hector, within the meaning of this statute. The two men were natives of Italy. Zebedio had left his native
state-Syrine, Italy-in April, 1890, and had left there a family consisting of a wife, their three children, and his mother, who still remain there. He had no property in this country except his clothing His family lived in Italy, in a house he had built or bought for them on rented land; and since being in the states he had, from time to time, sent money for the support of his family, and to pay for this house. His exact age does not appear, but he is upwards of 21 years of age. Depowel was 20 years of age at the time of the first hearing-December 27, 1892. His father lives somewhere in the state of Pennsylvania. Depowel is unmarried, and his mother and four brothers live in Italy. He came to this country from Italy in the month of April, year 1889 or 1890. Both of these young men had actually been located and living in the town of Hector for more than one year immediately prior to their accident and injuries. They had been all of the time at work for the McFaddens, as contractors in building the new branch of the Lehigh Railroad, extending from Van Ettenville, northerly through that town to Geneva, and beyond. The McFaddens, as contractors for the building of that portion of the road extending over what is known as “Breakneck” gully or gorge, through North Hector, employed a very large gang of men, principally Italians and Hungarians, and these men were of the number. Neither of them could speak the English language, and their testimony was taken through an interpreter. In the work the men were known and designated by numbers. Zebedio was No. 200, and Depowel No. 631. Zebedio had worked some two months on railroad work in Connecticut, and then in building a railroad at West Batavia, and came from there to the North Hector job. Depowel swears:
"He says a man came to him, and paid his fare, and he worked and paid the money back. (This is from New York city.) He bring him-he buy him -a ticket, and let him have the money for the ticket; and he come up here and work, and every pay day he pay $10 or $5."
This man's name, he says, was Felicia Stodio. He says they came all together, 20 or 30 of them, and the McFaddens' working boss set them to work. The men received $1.25 per day.
The system of board and lodging the men was this: The McFaddens, the contractors, built in or near the gorge, near the line of the road, one more buildings of rough boards, called "shanties," each shanty provided with from 20 to 50 bunks, or places for the men to sleep in. An enterprising Italian, who could speak English, rented one of these shanties, and in it kept a general furnishing store, rented the bunks to the men, and sold them material for their eating, which each man cooked for himself, generally upon one of the two large stoves in the center of the shanty; the storekeeper getting his pay for the sleeping bunks, and the food and clothing furnished the men, direct from the contractor, each pay day.
Were these men “residents and inhabitants” of the town of Hector? If not, they had gained no settlement there. tion is complicated from the lack of adjudged cases defining who are "residents and inhabitants," within the meaning of our
poor laws, and the great mass of decisions existing as to the meaning of the words when occurring in other statutes. "Gaining a settlement” in a township, so as to receive the support of the town authorities in case the person became poor and unable to support himself, has always been considered by the laws of England, and of the different states, as a great and important individual privilege, and has been carefully guarded by statute; and, as is said in opinion of the court in Lewistown Overseers v. Granville, 5 Pa. St. 283, "In England and in this country, with respect to gaining a settlement, courts have been critical and exact." In many of the states a. much longer time of continuous residence than one year is required. Prior to the Revised Statutes of 1827, except in the case of mariners, and healthy, able-bodied foreigners, coming direct from some foreign port, the time was longer than one year in this state, and was hedged about with conditions, such as renting lands, paying taxes, being bound as an apprentice, etc. In the case of Wynkoop v. Overseers, etc., of City of New York, (decided in 1808,) 3 Johns. 14, Sarah Warring had removed from Stamford, in the state of Connecticut, to the city of New York, about May 1, 1801. She lived there continuously from that time until January, 1805. She lived there with her brother-in-law, and in the capacity of a domestic servant, without any specific time of service or specified price agreed upon, although there was a verbal agreement that she should receive wages.
She had not been bound as an apprentice or servant to any one in the city. It was held that her legal settlement still remained in Stamford, Conn.; that she had not gained a new settlement in New York city. The court, (Spencer, J.,) says: "And her residence in New York was not of that kind as to acquire a legal settlement there.” The case of Henrietta Tp. v. Brownhelm Tp., 9 Ohio, 77, was under the then Ohio statute, under which a settlement would be gained by one year's residence without being warned by the overseers of the poor to depart the same, or three years' residence after being once so warned without being again so warned. It was held that such residence must be "continuous and notorious, and attended by such circumstances as to lead the authorities of the town, in the exercise of proper vigilance, to the conclusion that there is an intention to gain a settlement.” The case of Town of Salem v. Town of Lyme, 29 Conn. 75--80, was under the then Connecticut statute, which provided for settlement to be gained by residence in a town for six years, successively, after his or her removal into such town, supporting himself or herself. Hinman, J., delivering the opinion, states what kind of a residence is necessary to inaugurate the six-year term.
"When a domicile is once acquired by a residence for an indefinite time, with an intention to continue the residence indefinitely, the statute applies to the case. The residence which the statute contemplates as sufficient to gain a settlement, if it is continued for six years, has coinmenced."
The case of Lewistown Overseers v. Granville, 5 Pa. St. 283, was under a Pennsylvania statute which provided that an unmar
ried female, withcut a child, who shall be lawfully bound or hired as a servant, and shall continue such service one year, should gain a settlement in the town of such service. The woman in question had lived in the family of one Shrimp for 14 months. She had her board and clothes, and did what work she was asked, but there was no agreement or contract that she should have pay or wages; and the court held that she had not gained a settlement, within the provisions of the statute.
These cases are, perhaps, enough to show the trend of statutes and decisions in other states. In our own state, as we said, there are no decisions as to who are residents and inhabitants, under this statute; and we are forced to reason from the general meaning of the words, and the construction placed by our courts upon the same words when used in other statutes. Webster defines an "inhabitant” as“A dweller; one who dwells or resides permanently in a place, or who has a fixed residence, as distinguished from an occasional lodger or visitor; as, the inhabitant of a house or cottage; the inhabitants of a town, county, city, or state', etc."
"Resident" is a flexible word, having different meanings, according to the context. The author of the American Encyclopedia of Law (volume 10, p. 770) says of the word:
“This is a word with a great variety of meaning. The necessary element in its signification is locality of existence.' The permanency of the residence in. dicated, however, depends in a great degree upon the context. The word has been variously construed to mean an occupier of lands; a resident; a per manent resident; one having a domicile; a citizen; a qualified voter. The con struction is generally governed by the connection in which the word is used."
We do not see any well-founded distinction between "inhabitancy” and “domicile," when applied to the statute under consideration. The cases where a distinction is most broadly stated are those where attachments have issued on the ground of the nonresidence of a debtor. Notably, In re Thompson, 1 Wend. 45. But in that case, and in all that class of cases, the distinction was recognized or created in order to reach absent debtors, who could not be served with process.
tated by Gardiner, J., in Hag. gart v. Morgan, 5 N. Y. 428, (referring to the Thompson Case:)
"It was there held that his residence might be abroad, within the spirit of the statute, which was intended to give a remedy to creditors whose debtors could not be served with process, while his domicile continued in this state."
For this reason, we do not regard the decisions in attachment cases as the most reliable ones in the construction of the meaning of the words in question. The cases as to assessments of taxes also furnish a very imperfect guide, as in Bell v. Pierce, 51 N. Y. 13, it is held that, for some purposes of taxation of personal property, a person may have two places of residence, (one for winter, and another in the summer,) though but one domicile. We find the words often in the constitution of the United States. A representative in congress must be an inhabitant of the state. Const. U. S. art. 1, § 2, subd. 3. And so senators of the United States. Id. & 3, subd. 3. And the president and the vice president shall not,