Eaves Costume Co. v. Pratt — 50 N.Y. St. Rep. 763

Majority

p. 763

The Eaves Costume Co., Resp't, v. Thomas H. Pratt, App'lt.

(New York Common Pleas,

General Term,

Filed February 6, 1893.)

Headnote

Attachment—Residence.

Defendant's domicil of origin was in Missouri. While an infant the family removed to Connecticut for the purpose of completing the sons’ education. In 1890, he came to this city, opened an office, and after boarding at different places for about two years, hired apartments for a few months, when he abandoned them, stored his furniture and left the state for his summer vacation. On motion to vacate an attachment issued during this absence, Held, that these facts showed that he was not a resident of this state; that without satisfactory evidence that defendant at the time the attachment issued had a fixed place of abode within the state, his residence must be presumed to be at the place of his domicil.

Appeal from an order at special term denying defendant’s motion to vacate an attachment against his property, which was issued on the ground of his non-residence, pursuant to the provisions of subdivision 2, § 636, Code Civil Procedure.

Charles H. Lelhnan, Jr, for resp’t;

Geo. Carlton Comstock, for app’lt.

A person may be domiciled in one state and resident of another. , Frost et al. v. Brisbin, 19 Wend., 11 . His domicil is the place to which he intends eventually to return and there to remain, Matter of Thompson, 1 Wend., 43 , while his residence comprehends no more than a fixed abode for the time being, as contradistinguished from a place of temporary sojourn. Matter of Wrigley, 8 Wend., 134 .

On the hearing of the motion to vacate the attachment, it appeared from the affidavit of Elizabeth H. Pratt, which was submitted for the purposes of the motion on defendant’s behalf, that at all times prior to the removal of her family, which consisted of herself and two sons, one of them the defendant, to Hew Haven, Connecticut, their domicil was in St. Louis, Missouri; and that

p. 764

about the year 1887 the removal to New Haven was effected for no other purpose than to complete the sons’ education. The St. Louis domicil was, therefore, not abandoned, and as at the time of the removal to New Haven defendant was an infant, his domicil was that of his mother. Lamar v. Micou, 112 U. S., 452 .

St. Louis having been shown to be defendant’s domicil of origin, its continuance, both during his minority and thereafter, must be presumed until it satisfactorily appears that he has established a domicil of choice. Lawson’s Eights, Eemedies & Practice, vol. 7, p. 6067, § 8848. No attempt was made by defendant to prove a domicil of choice, but instead he endeavored to show that when the attachment was issued he was not a resident of New Haven, but of New York. Plaintiff’s right to the attachment, however, was not dependent upon the fact of defendant’s residence in New Haven, but upon the fact of his non-residence within the state of New York.

In June, 1890, when defendant was but twenty years of age, he came to the city of New York to venture in the business of a theatrical manager. For this purpose he established an office, and after having at intervals lived at boarding houses and hotels, about February, 1892, rented apartments at 250 West Thirty-ninth street, in said city, which he in turn abandoned shortly before July 15th of the same year, when, as he says himself, he stored his furniture and went to Old Orchard, Maine, there to spend his summer vacation. On July 28th, concededly, while defendant was without the state, the attachment was issued.

The facts narrated show that at the time of issuing the attachment defendant had no fixed abode within, and that he was, therefore, at that time not a resident of the state of New York. Assuming that he had a general intention of future return, that fact alone did not constitute a continuance of his abode, Wood v. Hamilton, 14 Daly, 41 ; 1 St. Rep., 779 ; Weitkamp v. Loehr, 53 N. Y. Supr. Ct., 83 ; nor was defendant’s own declaration of his intention to renew his abode at a stated time conclusive. Dietlin v. Egan, 46 St. Rep., 762 . His domicil of origin was in St. Louis. He had not acquired a domicil of choice. Actual abode, for business accommodation only, did not effect a change of domicil. Matter of Wrigley, 8 Wend., 134 , 139. It could only be acquired by concurrence of actual residence and intention permanently to remain. 5 Am. & Eng. Ency. of Law, 862. And without satisfactory evidence that defendant, at the time when the attachment was issued, had a fixed place of abode within the state, his residence must be presumed to be at the place of his domicil.

The order appealed from should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.