139 N.Y.S. 78 | N.Y. App. Div. | 1913
The parties intermarried in Germany in 1886j where they continued to reside until some time in 1891, when, according to the allegations of the complaint, the defendant, wrongfully and without just cause or provocation, abandoned the plaintiff and has since refused to support or live, with her. Shortly after the abandonment the defendant came to the State of Ye.w York, where he has since resided. The action was commenced by the service of a summons on- the defendant on the 31st of May, 1912, and the plaintiff was not then within the State of Yew York, nor had she ever been in the United States. Subsequently she left Germany and reached Yew York about the 20th of June, 1912, the defendant in the meantime having temporarily left Yew York for Germany, where he was when she arrived. He did not appear in the action, but his default was subsequently opened and he was permitted to come in and defend. During his default the plaintiff obtained, ex parte, an order awarding her $10 a week alimony and $500 counsel fee, and also an order appointing a receiver of defendant’s property in sequestration proceedings. After defendant had appeared in the action he moved, upon notice, to vacate the order awarding alimony and counsel fee and appointing the receiver; . The motion was denied and he appeals, urging that
The question, therefore, which is presented by the appeal is whether under our statute (Code Civ. Proc. § 1763) this action can be maintained when, at the time it was commenced, plaintiff was not and never had been a resident of the State. The statute provides that an action of this character may be maintained (1) where both parties are residents of the State when the action is commenced; (2) where the parties were married within the State and the plaintiff is a resident thereof when the action is commenced; and (3) where the parties having been married without the State have become residents of the State and have continued to be residents thereof at least one year and the plaintiff is such a resident when the action is commenced.
Plaintiff contends that she comes within subdivision 1 and was ip. fact a resident of the State when the action was commenced, because her husband was then domiciled and resided here; in other words, that she had a right, at her election, to consider her husband’s domicile and residence her own. The rule seems to be well settled that the domicile of the husband is prima facie that of the wife. (Hunt v. Hunt, 72 N. Y. 217.) This rule, however, has its exception, which is that where a married woman is wrongfully abandoned or for good and sufficient reason leaves her husband, she may acquire a separate domicile for the purpose of enforcing her rights. . (Cheever v. Wilson, 76 U. S. [9 Wall.] 108; Harris v. Harris, 83 App. Div. 123; Ensign v. Ensign, 54 Misc. Rep. 289; affd., 120 App. Div. 882.) I have been unable to find any authority in this State to the effect that the domicile acquired by tire husband after he has wrongfully abandoned his wife is, prima facie, her domicile. There are authorities in some of the other States to this effect, but they seem to proceed upon the theory that she could not, if she so desired, acquire a separate domicile. (Nichols v. Nichols, 92 Fed. Rep. 1; Greene v. Greene, 11 Pick. 415; Kashaw v. Kashaw, 3 Cal. 312; Masten v. Masten, 15 N. H. 159; Mellen v. Mellen, 10 Abb. N. C. 329, and note.)
Here, plaintiff’s domicile of origin and- matrimonial domicile
In de Meli v. de Meli (120 N. Y. 485) the court, speaking of what was required under the section of the Code referred to in order to enable a party to maintain an action in this State, said: “The question here has relation to the legal residence of the parties. And within the meaning of the statute providing for actions of this character, the place of which, the parties are residents is that of their permanent abode, which may be distinguished from their place of temporary residence. * * * In legal phraseology residence is synonymous with inhabitancy or domicile. And it is in this sense that the term resident is used in the provisions of the Code before referred to, and persons having that relation to this State are its citizens and residents, and for the purposes of the relief like that in view of this action, they are subject to the jurisdiction of its courts.”
In Hewes v. Hewes (16 N. Y. Supp. 119) Ingraham, J., said: “It is clear, however, that the residence spoken of in the section of the Code cited is an actual residence of each of the parties and not the theoretic residence of the wife which is presumed to follow that of the husband. The language used is in the plural. It is the parties that must be residents of the State, to entitle either of them to maintain the action. "x" * "x" ” (See, also, Ramsden v. Ramsden, 28 Hun, 285; Toosey v. Toosey, 14 Daly, 537; 3 N. Y. Supp. 951.) It is the actual residence of both parties which gives the court jurisdiction. If this be true, then the plaintiff cannot maintain this action. Had she been, at the time the action was commenced, a resident of the State, she could do so, because both of the parties would, in that case, have been residents.
The order appealed from is reversed and the motion granted.
Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.
Order reversed and motion granted.