
    Robert Flaherty, Respondent, v. Clarence Cary and Others, Appellants.
    
      Security for costs — allegations as to residence.
    
    Where, on an application to compel a plaintiff to give security for costs on the ground that he is a non-resident of the Slate of New York, it appears that the plaintiff has in his affidavit considered “domicile” as synonymous with “residence,” and that while his “ domicile” may have continued to be in the State of New York,- he has removed his actual residence to Philadelphia, confused and indefinite statements as to his own presence and that of his property in New York city will not be allowed to prevail and relieve him from the obligation of giving security for the costs of the action.
    Appeal by the defendants, Clarence Cary and others, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of- the clerk of the county of Mew York on the 13th day of December, 1897, vacating an order requiring the plaintiff to give security for costs.
    
      Willard Parker Butler, for the appellants.-
    
      Howard P. Okie, for the respondent.
   Barrett, J.:

The defendants, upon an affidavit which was probably insufficient, obtained an ex parte order requiring the plaintiff to give security for costs, upon the ground that he was a non-resident. Instead of moving to vacate this order upon the papers on which it was granted, he made a motion upon affidavits alleging that he is a resident. The defendants met these affidavits by further proofs in support of their allegation of non-residence, g,nd thus the question of residence or non-residence is to be determined from all the affidavits contained in the record.

The plaintiff deposes that he “resides in the city and county of Mew York, where he has continually resided for seventeen years last past.” This is but the statement of a conclusion, unless taken to mean that the plaintiff has actually lived within the city for that period, which, as" he was repeatedly absent, was obviously not intended. In a later part of the affidavit is a declaration that the plaintiff has business interests which “ preclude him from having a domicile in any other place thaii in said city.” The words “ domicile ” and “ residence ” aré here confused in the mind of the affiant. He evidently treats residence as synonymous with domicile, and this error is doubtless the keynote to his position throughout. It throws a clear light upon his assertion of residence, and, in view of the real facts as to his business life and doings, it plainly indicates that domicile, in its legal sense, and not residence, is what he speaks of.

The defendant’s affidavits show quite conclusively that, at some time in the year 1896, Mr. Flaherty moved from this city to Philadelphia in order to be near the Philadelphia office of the Remington & Sherman Co., which had just employed him, and that when his-employment there ceased, he still continued to reside in that city. The removal to Philadelphia, coupled with the intention to remain there permanently, that is, while his business required it, made plaintiff, for the time being, a resident of that' city, although his domicile at the same time may have been here. (Frost v. Brisbin, 19 Wend. 11; Matter of Austen, 13 App. Div. 247; Bennett v. Watson, 21 id. 409.)

The statements in plaintiff’s affidavit as to his employment by the firm of Remington, Sherman & Co.; his absences from the. city on the business of that firm; that he lived at Ho. 309 West Fourteenth street whenever his business engagements permitted him “ to make a. protracted stay in Hew York city,” an d his storage of trunks and property in this house during his absences, call for no'special consideration. These statements cannot outweigh the prominent facts upon which residence in a legal sense depends. They are, besides, trifling in themselves, and are more than balanced by the facts shown in the-plaintiff’s opposing affidavits. In view of the clear evidence of legal noil-residence furnished by the defendants, the circumstance, for example, that, during his absences from the city, the plaintiff left certain trunks and property in the care of the person with whom he-lived when he was here, is of no importance. So, also, as to the plaintiff’s statement that “he has always registered as 'a qualified, voter in said (this) city whenever circumstances ■ permitted him so-to do, and has never voted or performed- any other act of citizenship in any State other than Hew York.” This statement is quite vague. It leaves us entirely in the dark as to when circumstances, permitted him to register here, and, indeed, he does not say that- he. ever voted here. The real significance of the statement is in what it fails to tell ns.

Without commenting further upon the affidavits or-attempting a minute analysis of their contents, we need only say that upon their careful examination we think it clear that the plaintiff is a non-resident within the meaning of the statute (Code Civ. Proc. § 3269), and that the order requiring him to give security was proper.

The order appealed from should he reversed, and the order requiring' the plaintiff to give security reinstated, with costs and disburseriients of the appeal and costs upon the denial of the

plaintiff’s motion.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Order reversed, and order requiring plaintiff to give security reinstated, with costs and disbursements of appeal and costs upon the denial of the plaintiff’s motion.  