173 Misc. 693 | City of New York Municipal Court | 1940
This is a motion to vacate the special appearance of the defendant. The action, brought by residents of the city of New Rochelle, is for damages arising out of a collision which occurred in the State of New York between two motor vehicles. At the time of the accident the defendant operated an automobile which bore Pennsylvania license plates and gave his address as 123 South Thirty-ninth street, Philadelphia, Pa. The affidavit submitted by the defendant upon this motion reveals, however., that he is permanently domiciled in the city of Mount Vernon and that he is absent from the State of New York solely because he is a student at the University of Pennsylvania. The summons and complaint in the action were served pursuant to section 52 of the Vehicle and Traffic Law by mailing a copy to the Secretary of State and service of a copy upon the defendant by registered mail at his Philadelphia address. Section 52 of the Vehicle and Traffic Law permits service in this manner upon non-residents of the State of New York, and the question now presented is whether the defendant was a non-resident at the time of service within the meaning of that section. The precise proposition has not, apparently, been considered by any court in this State. The main contention of the defendant is that since he has a domicile in the State of New York, he does not come within the provisions of the law. This contention is supported by some cases, which, in interpreting the words “ residence ” and “ resided ” as used in various provisions of the Civil Practice Act, hold that a requirement of residence'can be satisfied only by actual domicile. (See Kleinrock v. Nantex Manufacturing Co., 201 App. Div. 236; DeMeli v. DeMeli, 120 N. Y. 485.) In the DeMeli case, however, the court acknowledged that the intention in some statutes is to determine the matter of residence by the place where a person actually lives regardless where his domicile may be. As a matter of fact, there are a number of cases which hold that persons may be non-residents despite the maintenance of a domicile in the State of New York. (See Frost v. Frisbin, 19 Wend. 11; Pooler v. Maples, 1 id. 65; Haggart v. Morgan, 5 N. Y. 422.) The recent tendency is to give to the word “ resident ” a popular rather than a technical and restricted meaning. Thus, in Matter of Newcomb (192 N. Y. 238, 250) the Court of Appeals stated: “ Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile.” In construing the words “ residing within the State,” as used in section 230 of the Civil Practice Act, which deals with substituted service of summonses, the Court of Appeals, in the case of Rawstorne v. Maguire (265 N. Y. 204, 208), stated: “ We may not, however,
Although the case of Marano v. Finn (155 Misc. 793) indicates that absence at college would not effect a change of residence, the conclusion of the court is based upon the case of Kurland v. Chernobil (260 N. Y. 254) which decides merely that the provisions of the Vehicle and Traffic Law cannot be given a retroactive effect. The court in the Kurland case did not, however, define the terms “ resident ” and “ non-resident ” as used in sections 52 and 52-a of the Vehicle and Traffic Law. The defendant maintains, furthermore, that this court has no power to send its process beyond Westchester county, and, therefore, is without jurisdiction. The case of Gruber v. Wilson (276 N. Y. 135), cited by the defendant for