p. 3Henry H. Roberti and Margaret Roberti, his wife, v. The Methodist Book Concern.Headnote
A married man having bis family fixed in one place, but doing business at another, is deemed to have his residence at the former, and while his family so remain fixed, he cannot acquire a residenco elsewhere.Although by reason of a prolonged absence from the State, a party might be proceeded against by attachment at the instance of a creditor, yet he may be deemed a resident of this State for all other purposes.
Thus, where a plaintiff liad been absent from the State for more than two years, on business, but his wife and minor child continued to reside here —Held, that the plaintiff was not such a non-resident as that the Court would compel-him to file security for costs.
. Appeal from an order granted, on motion, at Special Term, requiring the plaintiffs to file security for costs within twenty days. The affidavits on both sides, read on the motion, show ' that Henry H. Eoherti, one of the plaintiffs, and husband of the other plaintiff, was not in this State at the commencement of the action, and had not been in this State for more than two years.
The action was brought to recover damages for injuries to the person of the plaintiff, Margaret Eoherti, and to the furniture in her apartments, caused by the fall of a chimney, built and owned by the defendants, on their premises near the apartments where Margaret Eoherti lodged.
The plaintiff, Margaret Eoherti, in her affidavit in opposition to the motion, alleged that her husband was absent from New York on business; that she did not know the exact place in which he was; hut she thought he was then in Kansas or Texas, and would soon return to his residence in this city. That since his absence, she and her minor daughter have resided in this city, and had received letters from her husband from time to time, expressing an intention to return to his home here.
C. L. Spilthorn and John B. Fogarty for appellants.
E. L. Fancher for respondents.
p. 4By the Court.
When the plaintiff, Henry H. Boberti, left this city two years ago, lie was a reside fit of this State, his domicil <md family having been located here for about two years previously. .
Although, by reason of his prolonged absence, he might he proceeded hgainst by attachment at the instance of a creditor, yet he is still to be deemed a resident of this State for all other purposes.
A married man having his family fixed at one place, hut doing business at another, the former is to be deemed bis place of residence ; and while his family so remain fixed, he cannot acquire a residence elsewhere : the rule being that his original domicil must prevail until lie acquires another. Phillimore’s Law of Domicil, §§ 23, 209 ; Matter of Thompson, 1 Wend. 44 ; Chaine v. Wilson, 1 Howard, 552 , 558; Houghton v. A ult, Id., 78.
The case of Wright v. Black ( 2 Wend. 258 ), cited by respondent as controlling the present case, was prior to the Be-vised Statutes, and seems to be under a rule of Court made in January, 1799. Besides, it did not there appear that the plaintiff had a family, or any fixed place of abode. Order appealed from reversed with §10 costs. '