
    Cincinnati, Hamilton and Dayton Railroad Company, Pl’ff, v. Henry S. Ives et al., Def’ts.
    
      (Supreme Court Chambers, New York County,
    
    
      Filed February 15, 1889.)
    
    Place of trial—Code Civil Procedure, § 984—Residence—Actual RESIDENCE OF PARTY DETERMINES PLACE OF TRIAL.
    The provisions of section 984 of the Code of Civil Procedure, making the residence of the parties the controling fact in fixing the place of trial, mean actual residence, and not necessarily the domicile of one of the parties.
    Motion to change place of trial.
    
      Frank R. Lawrence and Elihu Root, for pl’ff; Hoadley, Lauterbach & Johnson, for def’ts.
   O’Brien, J.

It is conceded upon this application that if the defendant, Henry S. Ives, was not at the time of the •commencement of this action, a resident of the city of New York, within the meaning of section 984 of the Code of Civil Procedure, that the place of trial must be changed to Kings county.

The question to be determined, therefore, is, what is meant by the term “ residence ” as used in this section ? It must be noted that a distinction is taken by the text-writers and the authorities, between actual and legal residence, the latter being generally equivalent to a domicile. A legal residence or domicile is defined to be “a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. ” To constitute a domicile two things must concur—first, residence; secondly, the intention to remain there. Domicile, therefore, or legal residence, means more than residence. A man may be a resident of a particular locality without having his domicile there. He can have but one domicile-at one and the same time, at least for the same purpose,, although he may have several residences.

According to the most approved writers and lexicographers, residence is defined to be “a place of abode, ” a dwelling, a habitation, the act of abiding or dwelling in a place for some continuance of time. ■

Notwithstanding these definitions, it is extremely difficult to say what is meant by the word residence, as used in particular statutes, or to lay down any particular rules on the subject. . All the authorities agree that each case must be decided on its own particular circumstances, and that the general definitions are calculated to perplex and mislead. It is apparent that the word “residence” like that .of “ domicile,” is often used to express different meanings according to the subject-matter. In statutes relating to taxation, settlements, right of suffrage and qualifications for office, it may have a very different construction from that which belongs to it in statutes relating to attachments. In the latter actual residence is contemplated, as distinguished from legal residence. And while, on the other hand, causual or temporary sojourning of a person in this state, whether on business or pleasure, does not make him a resident of this state within the meaning of the attachment laws, especially if his personal domicile be elsewhere, so, on the other hand, it is not essential that he should come into this state with the intention to remain here permanently to constitute him a resident. Long v. Ryan, 30 Gratt., 718; Jacobs on Law of Domicile, § 73.

“A person may have his residence in one place and his; domicile in another.” Again, “ While he can have but one domicile, he may have two or more residences, and, on the other hand, he may be without an actual residence,, although he cannot be without domicile.” Jacobs, Id., § 73. “ Residence implies an established abode, fixed permanently for a time, for business or other purposes, although there may be an intent in the future at some time or another to return to the original domicile.”

Morgan v. Nunes, 54 Miss., p. 308: “Residence is a. favorite term employed in statutes to express the connection between person and place; its exact significance being left to construction, to be determined from the context, and the apparent object sought to be attained.”

“Eesidence, when used in statutes relating to the subject of voting and eligibility to office, jurisdiction in divorce, probate and administration, etc., is in nearly every case synonymous with - domicile.’ ”

In statutes relating to personal taxes the distinction between residence and domicile is made. Bell v. Pierce, 51 N. Y., p. 17.

In the well-considered case of The People v. Platt (20 N. Y. State Rep., 249), to test the title to office, and wherein all the cases showing the distinction between residence and domicile are collated, it was held that the word residence, as used in the Laws of New York (Laws of 1863., chap. 358), meant ‘ domicile.’

In that case, however, Justice Learned said: “The meaning of the words reside ’ and c residence ’ and 1 domicile,’ when applied to proceedings by attachment and the like against non-resident debtors, presents a different question.”

Again he says: “It is owing to the different meanings in which the word 1 residence ’ is used that, while some cases may be found in which ‘ residence ’ and ‘ domicile ’ are said to be synonymous, others may be found where they are contrasted,” and comments upon the language of Lord Westbury in Bell v. Kennedy (L.R., 1 H. L. Sc., 320), where he says that “residence and domicile are two perfectly distinct things.” Without, therefore, referring to all the cases cited in that opinion, and so ably commented upon, it is sufficient to say that, in many cases, the two words f' residence” and “domicile” are not synonymous. In Bell v. Pierce (51 N. Y., p. 17), Judge Hunt says: “ To establish a residence requires a less permanent abode than to give a domicile, or even create an inhabitance.” In this latter case it was one relating to the imposition of a tax on personal property, and although it was conceded that the domicile of the person taxed was in one place, he was yet taxed as a resident in another.

The case of Stacom v. Moon (13 N. Y., Week. Dig., 348), was one in which the distinction between residence and domicile was applied upon a motion to change the place of trial of an action. The general term of this department in that case decided that the place of trial should be changed from Yew York to Saratoga county, upon the ground that plaintiff had a residence at Saratoga Springs from May to September, although the rest of the year she resided elsewhere.

In the case of Lyon v. Lyon (30 Hun, 455), it was held that the place of trial was to he determined by the residence and not the domicile of the parties. Justice Pratt, in delivering the opinion, says: “ The cases make a distinction between residence and domicile. The domicile of a person may be in one place and his residence in another. The section of the Code referred to (§ 984) makes the residence of the parties the controlling fact in fixing the place of trial. This means actual residence, and not necessarily the domicile of one of the parties.”

In the cáse of Weitkamp v. Loehr (58 Super. Ct, to) the distinction between the words “residence” and “domicile,” as applied to the attachment powers, is defined. It is in that case said: “Residence in attachment laws generally implies an established abode, fixed permanently for a time for business or other purposes, although there may be an attempt existing all the while to return to the true domicile. While, therefore, the words “domicile” and “residence” may be synonymous and used in statutes relating to subjects of voting and eligibility to office, taxation, jurisdiction in divorce, probate and administration, the distinction between them is to be observed with reference to questions under the Code, relating to attachments or affecting the rights of parties as to the place of trial of an action. Having concluded, therefore, that upon the construction of section 984 of the Code, the distinction is to be observed between residence and domicile, it only remains to be determined whether the defendant was a resident of the city of New York within the meaning of that term, as defined by the authorities cited.

It may well be, therefore, that the domicile or legal residence of the defendant Ives was, at the commencement of this action, in Kings county, but if, on the facts as shown upon this motion, he was arrested in the city of New York, he is not entitled to have the place of trial changed. The affidavits' show that the defendant Ives is a young, unmarried man, about twenty-five years of age, and that, prior to December, 1888, he lived at the residence of his sister, at No. 136 Joralemon street, Brooklyn. On December, 8, 1888, the Brooklyn house having been sold and possession given to the purchaser, he took a lease of apartments in the “Aurelia,” a bachelor apartment house at No. 281 Fifth avenue, in the city of New York, for one year' and five months, for which he agreed to pay an annual rent of $1,650. The lease contains a covenant on the part of Ives not to assign the lease or underlet the premises, or any part thereof, and “that he will not use, or permit to be used, the said premises, nor any part thereof, for any purpose other than that of a private dwelling apartment for himself only.”

From the time of renting these apartments up to the time of the commencement of this action there can be no doubt that this was his only place of abode. For, while it may be true that he may have spent many nights at the house of the co-defendant, Stayner, in Brooklyn, his sojourn there was merely that of a guest, and his presence in that family was by reason of the invitation extended to him from time to time.

Both he and his servants were occupants of the “Aurelia.’5 He had a daily newspaper delivered there, his letters were delivered there, and his washing was done by a laundress who took his clothes to and fro from that house. His physician visited him there. He slept there, though, perhaps, not regularly. Breakfast occasionally was served to him there, and there many of his friends visited him.

_ Although, therefore, he may have voted at the last election in the city of Brooklyn and arranged to occupy rooms at the club at some time at or after the commencement of this action, and while the facts presented in his behalf might be conclusive upon the question that he had not lost his domicile in Kings county, they are not inconsistent with his having secured a residence in the city of New York before and at the time this action was commenced. Having concluded on the facts that he had acquired a residence in New York city, within the meaning of section 98é of the Code, I am of the opinion that this motion to change the place of trial from New York to Kings county should be denied.  