Taylor v. Norris — 104 A.D. 21

Majority

p. 21

Martha Taylor, Respondent, v. Edward Norris, Appellant.

Headnote

Security for costs — what does not constitute ‘ ‘ residing without the State.”

Where the plaintiff in-an action was domiciled in the State oi New York at the time of the commencement of such action and for a'considerable period prior thereto, having a residence in the borough, of Brooklyn, city of New York, the fact that for a few weeks, which included the date when the action was commenced, she had been stopping temporarily with a relative in the State of New Jersey, at the expiration of which sojourn she returned to the borough of Brooklyn, where her household effects had remained, does not constitute her “ a person residing without the State ” at the time of the commencement of the action, within the meaning of subdivision 1 of section 3268 .of the Code of Civil Procedure, and entitle the defendant in the action to demand that she give security for costs. '•

p. 22

■ Appeal by the defendant,, Edward Norris, from an order of" the Supreme OoUrt, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings On the 23d day of November, 1904, vacating a prior order requiring -the plaintiff to give security for costs. ■ ...

Henry Sillcocks [Robert S. Fletcher with him on the brief], for the appellant.

Edward A. Richards, for the respondent.

'The plaintiff sued the defendant on the 21st day of October,. 1904, to recover damages for assault and battery. On the 2d day «of November, 1904,- the defendant obtained an ex joLrte order . ."•requiring the plaintiff to give security for costs on the ground that shé was at the.time of the commencement of the action “a person , -residing without the State” within the meaning of subdivision 1 of ¡section 3.268 of the Code of Civil Procedure. On a motion to Vacate this prder it. appeared that the plaintiff, /was domiciled in Itliis State at the time’of ■ the commencement of this action and for a considerable prior period, having a residence in-the borough of Brooklyn, but that for a fe,w weeks in order to receive care for her injuries she had been stopping temporarily with an uncle in Jersey City, and that such- sojourn included the date when the action was commenced. Her household effects remained at her residence m Brooklyn, and she had returned to actually live in Brooklyn before ' the determination of the motion.

I think the order was properly vacated. While the -question .of domicile is not necessarily controlling and residence may be acquired within the meaning of" the statute other than at tlie place of domicile,. I do not think that the mere fact* of being.out of the State temporarily constitutes the individual a non-fesident. In the " cases cited b.y the appellant there was something • more than mere absence under such circumstances as induced the'plaintiff, to visit at her uncle’s house for treatment. The doctrine Of such cases in -so far as they hold that absence from the State is the equivalent of non-residence lias been' overthrown, to that extent at least, by the decision of the Court of Appeals in Hart v. Kip ( 148 N. Y. 306 )

p. 23

in construing a provision of the Code of Civil Procedure similar in terms to the one under consideration herein, viz,, that provision of section 401 which then provided for a suspension of the Statute of Limitations where, after a cause of action has accrued against a person, he. departs from and resides without the' State, etc. (See Laws of 1888, chap. 498.) The court said (p. 310): “ In order to bring the case within the statute the defendant must reside without the State, and we cannot perceive that the courts below have given any effect whatever to that word, since the decision proceeded upon the ground that absence was.sufficient to suspend the operation of the statute. The residence of a party is presumed to be where his domicile is, though he may be temporarily absent, until some facts are shown to change the presumption or to justify a finding that, he has taken up another residence elsewhere.”

The order should be affirmed.

Bartlett, Jenks, IJich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Hart v. Kip 148 N. Y. 306 N.Y. 1896-01-28 p. 22