
    Shepard & Morse Lumber Company, Appellant, v. Henry G. Burleigh and Brackett W. Burleigh, Respondents.
    
      Action by a foreign corporation for malicious prosecution—the residence of the defendants is the proper county for the trial — such a corporation cannot be a resident of the State of New York.
    
    On a motion to change the place of trial of an action brought by a foreign corporation to recover damages for malicious prosecution instituted against it by the defendants, an affidavit of one of the defendants, who swears that both of the defendants are residents of the county to which it is sought to have the venue of the action changed, was considered sufficient to sustain an order changing the place of trial, although it appeared that the defendant making such affidavit, while he did businessand spent most of his time in such county, spent his Sundays with his family, who lived in an adjoining county, and the opposing affidavits tended to show that the other defendant resided in a county other than that to which it was sought to change the venue of the action.
    Van Brunt, P. J., dissented.
    A foreign corporation cannot be a legal resident of the State of New York, within the meaning of section 984 of the Code of Civil Procedure, even though it has been legally authorized' to do business in that State.
    Appeal by the plaintiff, the Shepard & Morse Lumber Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of December, 1897, changing the place of trial of the action from the county of Hew York to the county of Washington. . ■
    
      
      Eustace Conway, for the appellant.
    
      J. S. Potter, for the respondents.
   Ingraham, J.:

The action is brought by the plaintiff, a corporation organized under the laws of the State of Maine, against the defendants as copartners, the complaint alleging that the defendants’ principal office is at Whitehall, Washington county, 2ST. Y., to recover the damages sustained by what appears to be the malicious prosecution of civil actions instituted by the defendants against the plaintiff in the Supreme Court, in the said county of Washington. The defendants answered the complaint, and with the answer served a notice demanding that the place of trial be changed from the county of Hew York to the proper county, viz., the county of Washington. The plaintiff having refused to consent to such demand, the defendants made a motion that the place of trial be changed to Washington county, based upon an affidavit of one of the defendants, who swears that the defendants are both residents of the county of Washington and engaged in business in said county. That motion was granted, and from the order granting the same the plaintiff appeals.

By section 984 of the Code it is provided that an action not specified in sections 982 and 983 must be tried in the county in which one of the parties resided at the time of the commencement thereof. As this action does not appear to be one specified in either of the two sections named, it must be tried in the county in which one of the parties resided.

In answer to the defendants’ affidavit, the plaintiff submitted affidavits tending to show that one of the defendants resided in ■ Essex county, and that the family of the other defendant, Henry G. Burleigh, also had a residence in said county, but the allegation that the defendant Henry G. Burleigh was a resi-. dent of Washington county is nowhere denied. All of the affi- • davits state that the defendant Henry G. Burleigh does business in Washington county and spends most of the time there, returning to Ticonderoga, Essex county, to spend Sunday of each week. Washington county joins Essex county on the south, the village of Ticonderoga being a short distance from the boundary line between the two counties. Whether or not the defendant’s legal residence is at Whitehall, where his business is located, and where he spends most of his time, or at Ticonderoga, where his family lives, and where he spends Sundays, is a matter of fact which was submitted to the court below upon the affidavits. The fact that the affidavit incorrectly stated the legal residence as to one defendant would not justify the court in denying this motion, if it found as a fact that the other defendant did reside in Washington county, the county named as the proper county.

In the case of People v. Platt (117 N. Y. 166) it was held that the defendant w-as a resident of Tioga county, although for years he had been in business and spent all of his time, except during the hot season, in the city and county of Hew York, it having appeared that, prior to removing to Hew York, he had been a resident of Tioga county; that he had continued to vote in that county, and that he had never intended to change or abandon his residence in that county.

It does not appear in what county this defendant voted, but he swears positively that his residence is in Washington county. . The mere fact that this defendant is in the habit of spending Sundays in an adjoining county with his family is not sufficient to show that he is not a resident of the county in which he swears he resides and which he 'claims as his legal residence.

It is quite clear that the plaintiff is not a resident of this State within the meaning of this section of the- Code. A foreign corporation cannot be a resident of this State. It has -but one domicile, namely, in the sovereignty that incorporated it ;■ and while a State may authorize a foreign corporation to do business within its boundaries, such a corporation does not thereby become a resident of that State. The provisions of chapter 687 of the Laws of 1892 do not change this relation of a foreign corporation to the State, or make it a resident of this State. A foreign corporation is still required to give security for costs as a non-resident, and is subject to an attachment against its property in an action commenced against it. The act, upon complying with certain conditions, authorizes such a foreign corporation to acquire a' place of business within this State, and to transact business here, but nothing in the act gives it the legal status of a resident of the State.

I think, therefore, that the order appealed from was right and should be affirmed, with ten dollars,costs and disbursements.

Rumsey and McLaughlin, JJ., concurred; Yan Brunt, P. L, dissented. .

Van Brunt, P. J. (dissenting):

I am of opinion that this motion should .have been denied. The only evidence that either of those defendants resided in Washington county is that contained in the affidavit of Henry G. Burleigh,, Submitted upon this motion, in which he swears that the defendants are both residents of the county of Washington in this State. It is conceded by the prevailing opinion that this affidavit is false in respect to the residence of the' defendant Brackett W. Burleigh, it having been shown that the latter was a voter in the county of Essex ánd a trustee of the village of Ticonderoga and that his family resided in that village.

It is difficult to see how any judicial action can be taken upon an affidavit of this character where it is shown to be knowingly false In one of its material particulars, simply because quite as positive evidence to contradict it in other material parts is not furnished. The affidavit of Henry G. Burleigh having been shown to be knowingly false as to the residence of Brackett W. Burleigh, the court should have rejected the affidavit until some further proof was offered in respect to the residence of Henry G. Burleigh than his mere statement that he resided in the county of Washington without stating in what part of the county he has fixed his legal residence. It is shown that his family resided in Ticonderoga and that, he stays with his family from Saturday until Monday ; and yet it is. said that this motion was properly granted because the ■ allegation that the defendant Henry G. Burleigh is a resident of Washington county is nowhere denied. Facts are shown from which residence in Essex county can be inferred, and there is no contradiction of this inference except by an affidavit which- is shown to be false and admitted to be false in respect to one of the defendants, as to whose residence Henry G. Burleigh had apparently as complete knowledge as' he had of his own. Henry G. Burleigh nowhere states where he resides in Washington county, and all that the plaintiff could do was to show that he lived with his' family in the village of Ticonderoga, and he thereby established facts from which the inference of Henry G. Burleigh’s residence in the county of Essex could be drawn. Ordinarily it takes but slight evidence to overcome averments contained in an affidavit which is shown to be absolutely false in respect to other material parts.

The order should be reversed.

Order affirmed, with ten dollars costs and disbursements.  