
    Reuben I. Radney, Resp't, v. Garry M. Hutchinson, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    Venue—Residence—Affidavit.
    On motion for change of venue on the ground of nonresidence of the plaintiff, proof by affidavit that plaintiff was domiciled in the state at the commencement of the action is not sufficient to overcome proof of non-residence; as residence and not domicil is the criterion.
    Appeal from an order denying a motion to change the place of trial of this action from the county of New York to the county of Cayuga, as the proper county, on the ground that at the commencement thereof plaintiff was not a resident of this county, but resided in New Jersey.
    
      Mortimer V. Austin {Abel K BlacJcmar, of counsel), .for app’lt;
    
      George W. Gibbons, for resp’t.
   Per Curiam.

This motion was made by the defendant, a resident of Cayuga county, to change the place of trial to that county, upon the ground that the county designated in the complaint was not the proper county by reason of the fact that the plaintiff at the commencement of the action was not a resident of the city and county of New York. The fact that he was not a resident of this county is clearly established. The plaintiff, in answer to the affidavits of the defendant and of three witnesses, showing his residence in New Jersey, seeks to avoid the force of these affidavits by asserting that he is not a nonresident of the state, and that he is a resident of Spring Yalley, in Rockland county; but he does not state that he was a resident of Rockland county at the time of the commencement of the action. He adds that he was domiciled in Rockland county prior to the commencement of the action; but residence, and not domicil, is the criterion. As the proof of the plaintiff’s nonresidence at the time of the commencement of the action is not met" by anything stated in the plaintiff’s opposing affidavit, the motion should have been granted. The order should, therefore, be reversed, with the usual costs and disbursemeuts, and the motion to change the place of trial to Cayuga county granted, with costs.

O’Brien and Barrett, JJ., concur.  