Hislop v. Taaffe

125 N.Y.S. 614 | N.Y. App. Div. | 1910

Bube, J.:

This action is brought to recover damages for personal injuries resulting from negligence. Such an action must. be tried in the county in which one of the parties resided at the commencement thereof. (Code Civ. Proc. § 984.) Residence, as the word is used in other sections of the Code (excluding those relating to attachments and service of process) and in other statutes (excluding those relating to taxation), is. generally synonymous with domicile. The same meaning should be given to it here. It means the permanent home and the place to which, whenever absent for purposes of business or pleasure, one intends to return, (de Meli v. de Meli, 120 N. Y. 485, 491; Washington v. Thomas, 103 App. Div. 423.) It must be admitted that some of the earlier cases gave a different construction to; the word “ resided,” as used in the section above referred to. (Cincinnati H. & D. R. Co. v. Ives, 3 N. Y. Supp. 895; Bischoff v. Bischoff, 88 App. Div. 126.) The former case was decided by -the Special Term of the Supreme Court in Hew York county in 1889, but: as the Appellate Division in the First Department, in the case of Washington v. Thomas (supra), declined to follow it, we need no longer consider it as an authority. In the Bischoff case, the language of the opinion, so far as it attempts to distinguish residence from domicile, as applied to the section of the Code in question, was unnecessary to the determination of the case, since it clearly appeared from the facts therein that plaintiff’s domicile and place of sojourn were both in the county in which the action was brought. Defendant in this action, at the time of the commencement thereof and for a long time prior thereto, resided in Kings county. Unless plaintiff actually resided in Westchester county,- within the meaning of the statute, defendant’s motion to change the place of trial should have been granted. Plaintiff is a young man and unmarried. His parents reside at Belmar, H. J. It is undisputed that he actually resided and sojourned with them until he entered defendant’s employ about May 1, 1909. . Oh February 1, 1910, he was injured in defendant’s factory. Defendant stated in his affidavit, in support.of the motion, that during these ten months plaintiff resided at No. 151 Sands street in the borough of Brooklyn. Plaintiff denies that he ever resided there. ' As be states no other place of residence, if he did hot reside in Brooklyn, it would appear that he still considered his place of residence to be that of his original domicile at the home of'his parents, at Belmar. Immediately after his injury he was taken to a hospital in Brooklyn, and when he left there he went to the home of his parents. - On-April 2,1910, he went to Yonkers, in. the county of Westchester, and secured board there, and. on the twenty-ninth .of April'this action was commenced. There is evidence in the form of. statements made by members of his family at Belmar that he was only absent from there for' a'few days at a time; -that his'object in going to Westchester county was to enable him to bring this action in that county, and that as soon ás it was tried it was his intention to-return to Belmar permanently. These statements are not denied. There is "no pretense that he has any occupation in Yonkers, or is seeking any employment there.. His counsel'frankly admitted that his pur-' pose in going there was to enable him to bring this action in West-. Chester cdunty, and he asserts that he' is. within his legal rights in so doing.- . Starting with the fact in. effect asserted by him, that prior to April second his residence and domicile was in Belmar, we do not think that his temporary sojourn in Yonkers for the express purpdse of bringing .this action, and with no intention of permar nently remaining there, is sufficient to' divest him -of his residence and domicile in the former place, or to acquire a residence in. the latter. Permanent residence is not affected by a temporary sojourii iii another place for. business purposes. (Mills & Gibb v. Starin, 119 App. Div. 336; People v. Platt, 117 N. Y. 167; Pells v. Snell, 130 Ill. 379; Cadwalader v. Howell, 18 N. J. L. 138.) Plaintiff’s- only business at the present time seems to be the prosecution of this action. Within the authorities above-cited,- his sojourn in Yonkers for the purpose of attending to this business is not sufficient to deprive him of his ..original residence in Belmar, Or-make him a resident of Westchester county, within either the spirit Or the letter of the Code. provision'. .The -learned justice at Special Term, in his opinion, says: “ I perceive no reason why a citizen .of another State, where the laws relating to'suffrage are less liberal./-"" than in this State, may not take up his residence in this State, for the express purpose of becoming a voter therein, beeauero ’he likes better such laws of this State than those of the othe;r State. There are many people who can vote i'n New York who could not vote in some of the other States according to fluff laws of those States respectively.” The distinction between.ichis and the'supposititious case is clear. In the latter the chang/e/of residence is coupled with an intention to make such change? a permanent one, and to remain in the place to which the vot/yr'has removed, since if he did not he would lose his right op suffrage there. Here the intention of permanency is entirely lacking. • '

The order appended from should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial granted, with/ ten dollars costs. ''

Woodward, Thomas, Rich and Carr, J.T., concurred.

Ordtir reversed, with' ten dollars costs and disbursements, and. motion to change the place of trial granted, with ten dollars costs.