153 N.Y.S. 800 | N.Y. App. Div. | 1915
Appellant avowedly presents but one question — the jurisdiction of the Surrogate’s Court of the county of Kings to issue letters of administration. The denial of the allegation that the letters were “ duly issued ” raised an issue (Code Civ. Prod. § 532; Ziemer v. Crucible Steel Co., 99 App. Div. 169), and enabled the defendants to make an attack, but only for fraud or for collusion. (Ziemer v. Crucible Steel Co., supra; Hoes v. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435.) The jurisdiction of the Surrogate’s Court was exercised upon the fact that the deceased was “ at the time of his death a resident bf the county of Kings.” (See Code Civ. Proc. § 2476; now Code Civ. Prdc. § 2515, as amd. by Laws of 1914, chap. 443.) The attack was directed against such residence. At the close of prbof tile defendants moved to dismiss the plaintiff upon the gróUnd,. inter alia, that the Oourt had no jurisdiction, and the court reserved decision, but subsequently denied that motion as well as a motion for a new trial made upon that ground.
The question Of residence is one of fact. (Dupuy v. Wurtz, 53 N. Y. 556. See, too, Matter of Newcomb, 192 N. Y. 250.) The establishment of “ actual fraud ” was not essential. (Hoes v. N, Y, N H & H. R. R. Co., supra, 442.) The
I think that the court could not have disposed of the issue as a matter of law, in that there was no proof that the decedent was a resident of the county of Kings at the time of his death, and I think that the court did not err in denial of a motion to set aside the verdict (which necessarily found such residence) as contrary to the evidence. The proof was confined to the testimony of the plaintiff. Her credible and undisputed testimony is that she and the decedent lived in their home in Brooklyn, Kings county, for eight years, and that the intestate went therefrom to Cos Cob, in Connecticut, to work for his employer, who had a contract to be performed at that place. At first she remained in Brooklyn, but thereafter she joined her husband in Cos Cob and lived there with him from the middle of November until the following March, when he was killed in the course of that employment. When he went to Cos Cob he lived in a boarding house, and there is no proof that when she went to him there was any change in his method of living. They had no children and he was a wage-earner receiving about $20 a week. There is no direct evidence of the intestate’s domicile of origin, and the proof justified a conclusion that the intestate adopted Brooklyn as his residence. (Elbers v. United Ins. Co., 16 Johns. 128, 132.) Such residence is deemed to continue until there was proof of a change of location with the intent to make the new location a residence. (Chaine v. Wilson, 1 Bosw. 673, Woodruff, J., for the court.) If the intestate went to Cos Cob because his employment necessarily required him to be there, such a stay did not affect his permanent residence. (Hislop v. Taaffe, 141 App. Div. 40, 42, and authorities cited.) The fact that his wife went to him is not of cogent significance. It was natural enough, in that it saved his expense of travel to and from Brooklyn, when the alternative was a separation from his wife during an employment of some months. It is true that
The verdict was in favor of the plaintiff. It must be assumed, unless the contrary appear, “ that the jury found all the essential facts of which there was sufficient evidence consistently with the verdict” .(Gundlin v. Hamburg-American Packet Co., 8 Misc. Rep. 291), and if the counsel desired to offset the effect of the general verdict he should have requested a special finding as to the jurisdiction. (Id.)
The order and judgment must be affirmed, with costs. .
Present — Jenks, P. J., Thomas, Stapleton and Rich, JJ.
The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment and order unanimously affirmed, with costs.