Goodman v. Bainton — 65 N.Y. St. Rep. 73

Majority

p. 73

In the Matter of Oscar H. Goodman, Resp’t, v. Henry W. Bainton, App’lt.

(Supreme Court, General Term, First Department,

Filed January 18, 1895.)

Headnote

Election—Voters—Residence.

A student at a seminary of learning cannot gain a residence for the purpose of voting, though he has no other domicile.

Appeal from an order granting an application to strike name from the list or register of voters.

Thomas F. Wentworth, for app’lt; Charles H. Knox and Louis H. Hahlo, for resp’t.

Henry W. Bainton registered from No. 41 East Sixty-Ninth street, a seminary of learning, known as the “ Union Theological Seminary.” He had occupied the same apartment for more than one year, and had no other domicile. He was born in the city of New York, but in another assembly district than that in which the seminary was situated. His father died in 1890, since which time the building in which his father lived has been demolished. The motion to strike his name from the registry was made on the ground that the constitution forbids the acquisition by a student of a residence, for the purpose of voting, at a seminary of learning. It reads as follows :

“ For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum at public expense; nor while confined in any public prison.” Const, art. 2, § 3.

The learned judge reached the conclusion that Bainton did not gain a residence while a student at the Union Theological Seminary. That his decision was right seems to be so clearly written

p. 74

in the constitution as not to warrant any discussion of the subject. However, it should be said that the assurance which to some can only come from final judicial decision is afforded by Silvey v. Lindsay, 107 N. Y. 53 ; 11 St. Rep. 187 . The order should be affirmed.

All concur.