2 Misc. 2d 911 | N.Y. Sup. Ct. | 1956
The question for decision is the validity of service of process on Dr. Daniel S. Feldman, one. of the defendants in this malpractice ease. The action is said to have accrued on April 11 or 12,1952, when Feldman, a medical intern, is alleged to have mistreated the decedent who was his patient at the defendant hospital.
The summons was delivered to the Sheriff of New York City, the place of Feldman’s last residence in this State, on April 10, 1954 with the intention that it actually be served within 60 days after the expiration of the time limitation (Civ. Prac. Act, § 17). This was in the words of the statute an attempt to commence an action. Service was made personally on June 11, 1954 (Civ. Prac. Act, § 235), at the United States Naval Hospital, Philadelphia, Pennsylvania. Thereupon the defendant moved to set aside the service on the ground that he was not a domiciliary of New York. Plaintiff disputing, the issue was referred to the learned Official Referee who has reported against the validity of the service. The defendant now moves to confirm the Referee’s report and to grant the initial motion and the plaintiff asks that confirmation be denied and that the service be sustained.
The evidence from the affidavits and documents and the testimony of Dr. Feldman, the sole witness before the Referee, is that the movant was born and resided with his parents until 1949 in Philadelphia where he was educated as a physician. Thereafter and until May 28,1954 he continued his professional training in New York in the course of which he qualified here by registration as a physician giving New York addresses, married here in August, 1952 and in that period was joined in a local bank account with his wife. They separated in July, 1953 and
The defendant shows that he spent much o'f his spare time from his work in New York by returning on week ends and holidays to Philadelphia. Most of his personal possessions remained there except for necessary clothing and professional articles which he brought and kept in New York. He has consistently remained a registered voter in Pennsylvania and he voted there in the 1954 spring primary and in 1952. He never registered for elections in New York. His draft obligations under the Selective Service and Training Act were discharged in Philadelphia where he entered the Naval service. Motor vehicle registration and licensure as an operator in 1952, 1953 and 1954 were effected in Pennsylvania. His bank accounts have always been in Pennsylvania.
The fundamental distinction between domicile and residence is well known. The permanency of the former — where the roots are grounded, as has been said — as distinguished from the transitional qualities and multiple possibilities of the latter are also familiar. There may be one domicile, the home of one’s final return although there could be many different residences at the same time (Ruderman v. Ruderman, 193 Misc. 85). The existing domicile, whether of origin or selection, continues until a new one is acquired (Rawstorne v. Maguire, 265 N. Y. 204; see 28 C. J. S., Domicile, § 18, subd. b, par. [3]; Black’s Law Dictionary, definition “ Domicile ”). While a person may select a domicile by exercise of his intention, the conduct of the person is indicative of the intention (Matter of Limburg v. Snyder, 253 App. Div. 844).
There is no dispute that Feldman’s domicile of origin was in Pennsylvania and that it continued until 1949. The plaintiff contends that when the defendant came to New York in 1949 his subsequent conduct showed an intent to change to a New York domicile — marriage statements of residence, professional registration, telephone listings, etc., which continued at least until he returned to Philadelphia on May 28,1954. The defendant says his