24 F. Supp. 41 | D. Mass. | 1938
These actions, removed from the State court, are before this court on plaintiff’s motions to remand. Plaintiff contends that this court is without jurisdiction inasmuch as there is no diversity of citizenship. In one case, plaintiff sues in her capacity as administratrix, but since, in such an action, the citizenship of the administratrix controls (Mecom v. Fitzsimmons Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L. R. 904), the same issue is presented in both cases. That issue is whether on September 9, 1936, when the actions were commenced, the plaintiff was a citizen of New York State. If so, there was no diversity of citizenship.
Plaintiff is a married woman, and her citizenship is that of her husband. Anderson v. United States, 9 Cir., 202 F. 200; Mason v. Homer, 105 Mass. 116.
Citizenship as between the states depends upon domicile. In re Sedgwick, D.C., 223 F. 655; Poppenhauser v. India-Rubber Comb Co., C.C., 14 F. 707; Colorado Central Mining Co. v. Turck, 150 U.S. 138, 14 S.Ct. 35, 37 L.Ed. 1030; Steidle v. Reading Co., 3 Cir., 24 F.2d 299, 301.
The question to be considered, therefore, is whether Edward G. Prince, plaintiff’s husband, was domiciled in the State of New York in September, 1936. The motions were supported by depositions taken on behalf of plaintiff from which I find the following pertinent facts:
Mr. Prince was born and his home was in New Haven, Connecticut, until he grad
For six months prior to these actions, they resided continuously in New York State, living in apartment hotels in New York City and in Westchester County in the State of New York.
About the middle of October, 1936, Mr. Prince moved to Wisconsin, where he was given a position with a Gimbel store in Milwaukee. It was not until after the first of October that he first anticipated any change of residence from New York to Wisconsin.
This court, in Leave v. Boston Elevated Ry. Co., D.C., 14 F.Supp. 775, at page 776, said, “In order to acquire a domicile of choice, a person must establish a new-dwelling place with the intention of making it his home. Restatement of Conflict of Laws, § 15. Two things must concur; there must be physical presence at the new dwelling place, and there must be a present intention to reside there permanently or indefinitely, without any certain purpose to return' to a former place of abode.” Citing Gilbert v. David, 235 U.S. 561, 35 S.Ct. 164, 59 L.Ed. 360, and other cases.
On the facts of the case at bar, this test is fully met. There was physical presence of plaintiff and her husband in New York, a present intention of making New York their home for an indefinite time if not permanently, and - this without a certain purpose to return to Massachusetts. The single fact that Mr. Prince had not selected a settled place of abode in New York State did not prevent him from acquiring a new domicile of choice in that state. Winans v. Winans, 205 Mass. 388, 91 N.E. 394, 28 L.R.A. N.S., 992; Marks v. Marks, C.C., 75 F. 321; Stockyards National Bank of South Omaha v. Bragg, 8 Cir., 293 F. 879, nor did the possibility that he might later move to another state.
Granite Trading Corporation v. Harris, 4 Cir., 80 F.2d 174.
In Ennis v. Smith, 14 How. 400, 14 L.Ed. 472, the court made this observation (page 423), “But when there is a removal, unless it can be shown or inferred from circumstances that it was for some particular purpose, expected to be only of a temporary nature, or in the exercise of some particular profession, office, or calling, it does change the domicil. The result is, that the place of residence is prima facie the domicil, unless there be some motive for that residence not inconsistent with a clearly established intention to retain a permanent residence in another place.”
My conclusion on the facts and the law is that plaintiff was a citizen of New York when these actions were brought and that this court has no jurisdiction to entertain them.
Plaintiff’s motions to remand are allowed.