150 Misc. 694 | N.Y. Sup. Ct. | 1934
The plaintiff in this action seeks to enjoin the defendant from prosecuting an action for divorce in the State of Pennsylvania. Plaintiff contends that the legal domicile of the parties is in New York State and that the defendant is seeking to evade the laws of this State by voluntarily submitting himself to a foreign jurisdiction and obtaining a divorce there which would be fraudulent as against her who has given no ground for divorce in this State. The defendant insists that his legal domicile is in the State of Pennsylvania and that such being the case, an injunction cannot be obtained against his action for divorce in that State even though the court finds that one of the purposes of estabhshing his domicile there was to enable him to obtain such divorce upon grounds not recognized in the State of New York.
It is well settled that the court has power to enjoin residents in its jurisdiction from prosecuting an action commenced in a foreign jurisdiction. (Gwathmey v. Gwathmey, 116 Misc. 85; affd., 201 App. Div. 843; Greenberg v. Greenberg, 218 id. 104; Johnson v. Johnson, 146 Misc. 93; Richman v. Richman, 148 id. 387.) Whether it will exercise its power in this case depends entirely upon whether the defendant’s domicile is in the State of New York or in the State of Pennsylvania.
The question of establishment or change of domicile has frequently been the subject of attention by the courts, as in Matter of Newcomb (192 N. Y. 238), where the Court of Appeals said (at pp. 250 and 251): “As domicile and residence are usually in the same place, they are frequently used, even in our statutes, as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. * * *
“ The existing domicile, whether of origin or selection, continues until a new one is acquired and the burden of proof rests upon the party who alleges a change. * * *
“A change of domicile may be made through caprice, whim or fancy, for business, health or pleasure, to secure a change of climate, or a change of laws, or for any reason whatever, provided there is an absolute and fixed intention to abandon one and acquire another and the acts of the person affected confirm the intention. (McConnell v. Kelley, 138 Mass. 372.) No pretense or deception can be practiced, for the intention must be honest, the action genuine and the evidence to establish both, clear and convincing.” (See, also, Matter of James, 221 N. Y. 242, 256; Dupuy v. Wurtz, 53 id. 556; Lefferts v. Lefferts, 263 id. 131.)
Upon the evidence the court is compelled to find that the defendant’s alleged domicile in Erie was not and was not intended to be his permanent home; that it was pretense only and is sought to be