88 A.D. 126 | N.Y. App. Div. | 1903
The question for determination on this motion is not whether the plaintiff has a residence in New York county, but whether he has a residence in Westchester county. A person may have two qr more residences as distinguished from a domicile, and if the plaintiff at the time of the commencement of this action had either an actual residence or a domicile in. Westchester county, the action is properly brought in that county, although the plaintiff may also have had a residence elsewhere. (Cincinnati, Hamilton & Dayton R. R. Co. v. Ives, 21 N. Y. St. Repr. 67; Lyon v. Lyon. 30 Hun, 455.)
But subsequently in proceedings relating to the same matter he also testified that his residence was in Westchester county, and as above indicated, the two statements are not necessarily inconsistent with each other. Even if it be conceded that he had no residence in Westchester county in the early part of 1902, and prior thereto, nevertheless, he might very easily have a residence there in 1903 when this action was commenced. For a number of years, and until March, 1903, there was a committee of the person and estate of the plaintiff. It does not- appear for how long a period the plaintiff was confined in an asylum, but such committee had the legal custody and control of his person, and there is some difficulty in reaching a conclusion as to whether under such circumstances the plaintiff could acquire or lose a residence. The committee was discharged in March, 1903, and from that time, presumptively at least, the plaintiff has been at liberty to select his own residence. The question of residence is very largely one of intention. There is very little in the moving paper's of an evidentiary character which militates against the positive statement of the plaintiff that he resides in Westchester county and that he has been there since 1902. I accordingly reach the conclusion that this motion must be denied.
Motion denied.