
    Friedericka Wacker, Respondent, v. John (or Johann) F. Wacker, Appellant.
    First Department,
    January 3, 1913.
    Husband and wife — domicile — when wife may acquire separate domicile— action for separation — when wife abandoned in foreign country cannot maintain action here.
    The domicile of a husband is prima facie that of his wife. But where a wife, for sufficient reason leaves her husband, she may acquire a separate domicile for the purpose of enforcing her rights.
    The domicile of origin is presumed to continue until a new one is acquired, and the burden of proving the change rests upon the party alleging it.
    Domicile is the place where one has his true, fixed, permanent home and principal establishment, to which whenever he is absent he has an intention of returning.
    
      It seems, that where a husband and wife were married in a foreign country which was their original domicile and the husband there abandoned his wife and came to this country, leaving her without support, and she remained in that country, she cannot maintain an action for separation in this State on the theory that her domicile followed that of her husband.
    
      Even assuming that she obtained a constructive domicile in this. State because her husband came here, she cannot maintain an action for . separation in our courts unless she was a resident when the action was commenced, for the statute requires both parties to be residents of the State when the action is commenced in order that the court may have jurisdiction.
    Appeal by the defendant, John F. Wacker, from' an order of the Supreme Court, made at the "Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 28th day of October, 1912, denying the defendant’s motion to vacate an order awarding temporary alimony and counsel fee and appointing a receiver in sequestration proceedings.
    
      Benjamin Scharps, for the appellant.
    
      William H. Hamilton, for the respondent.
   McLaughlin, J.:

The parties intermarried in Germany in 1886j where they continued to reside until some time in 1891, when, according to the allegations of the complaint, the defendant, wrongfully and without just cause or provocation, abandoned the plaintiff and has since refused to support or live, with her. Shortly after the abandonment the defendant came to the State of Ye.w York, where he has since resided. The action was commenced by the service of a summons on- the defendant on the 31st of May, 1912, and the plaintiff was not then within the State of Yew York, nor had she ever been in the United States. Subsequently she left Germany and reached Yew York about the 20th of June, 1912, the defendant in the meantime having temporarily left Yew York for Germany, where he was when she arrived. He did not appear in the action, but his default was subsequently opened and he was permitted to come in and defend. During his default the plaintiff obtained, ex parte, an order awarding her $10 a week alimony and $500 counsel fee, and also an order appointing a receiver of defendant’s property in sequestration proceedings. After defendant had appeared in the action he moved, upon notice, to vacate the order awarding alimony and counsel fee and appointing the receiver; . The motion was denied and he appeals, urging that both orders are erroneous, since the court did not have jurisdiction of the subject-matter of the action.

The question, therefore, which is presented by the appeal is whether under our statute (Code Civ. Proc. § 1763) this action can be maintained when, at the time it was commenced, plaintiff was not and never had been a resident of the State. The statute provides that an action of this character may be maintained (1) where both parties are residents of the State when the action is commenced; (2) where the parties were married within the State and the plaintiff is a resident thereof when the action is commenced; and (3) where the parties having been married without the State have become residents of the State and have continued to be residents thereof at least one year and the plaintiff is such a resident when the action is commenced.

Plaintiff contends that she comes within subdivision 1 and was ip. fact a resident of the State when the action was commenced, because her husband was then domiciled and resided here; in other words, that she had a right, at her election, to consider her husband’s domicile and residence her own. The rule seems to be well settled that the domicile of the husband is prima facie that of the wife. (Hunt v. Hunt, 72 N. Y. 217.) This rule, however, has its exception, which is that where a married woman is wrongfully abandoned or for good and sufficient reason leaves her husband, she may acquire a separate domicile for the purpose of enforcing her rights. . (Cheever v. Wilson, 76 U. S. [9 Wall.] 108; Harris v. Harris, 83 App. Div. 123; Ensign v. Ensign, 54 Misc. Rep. 289; affd., 120 App. Div. 882.) I have been unable to find any authority in this State to the effect that the domicile acquired by tire husband after he has wrongfully abandoned his wife is, prima facie, her domicile. There are authorities in some of the other States to this effect, but they seem to proceed upon the theory that she could not, if she so desired, acquire a separate domicile. (Nichols v. Nichols, 92 Fed. Rep. 1; Greene v. Greene, 11 Pick. 415; Kashaw v. Kashaw, 3 Cal. 312; Masten v. Masten, 15 N. H. 159; Mellen v. Mellen, 10 Abb. N. C. 329, and note.)

Here, plaintiff’s domicile of origin and- matrimonial domicile were in Germany. Was her domicile, upwards of twenty years after being abandoned, prima facie the domicile of the husband,-she in the meantime not having done, a single act indicating an intention on her part to so construe it ? Domicile of origin is presumed to continue until a new one is acquired (Dupuy v. Wurtz, 53 N. Y. 556), and the burden of proving a change rests upon the party alleging it. (Matter of Newcomb, 192 N. Y. 238.) Domicile has been defined as the place where one “ has his true, fixed, permanent home and principal establishment, to which whenever he is absent, he has an intention of returning.” (Story Oonfl. Laws [8th ed.], 41.) ,Under this definition, it is not difficult to see that the plaintiff, at the time the action was commenced, did not have a domicile in the State of New York in fact, because she had never been here and so far as appears had no intention of coming. If she were domiciled here, then it was solely by reason of the fiction that her domicile followed that of her husband, which, under the facts here presented, I do not think it did.' But even assuming that she had a constructive domicile in the State of New York, I do not believe this gave her the right, without coming into the State, to maintain this action. The plaintiff, if she can maintain the action at all, must come within the 1st subdivision of the section of the Code hereinbefore referred to, which provides that such an action may be maintained. “ 1. Where both parties are residents of the State,, when the action is commenced. Prior to 1880 the Revised Statutes provided (2 R. S. 146, § 50; R. S. pt. 2, chap. 8, tit. 1, § 50) that an action for separation might be maintained, “ 1. Between any husband and wife, inhabitants of this State.” It seems to me clear that under the Revised Statutes the plaintiff could not maintain the action because she was not an actual inhabitant óf the State, nor could she claim to be a constructive one by reason.of the domicile of her husband. There is nothing in the enactment of 1880 (Laws of 1880, chaps. 1Y8, 245) to indicate an intent on the part of the Legislature to enlarge the scope or change the purpose. of the stab ute; on the contrary, the only change of substance in the words used would seem to indicate that an actual residence here was necessary ■ to the maintenance of the action. The words are “where both- parties are residents.” The word “both” is significant. This would not have been used unless it were intended that both parties should reside in the State. If the plaintiff’s contention he correct, then she can maintain the action without ever coming here at all, her testimony being taken by commission.

In de Meli v. de Meli (120 N. Y. 485) the court, speaking of what was required under the section of the Code referred to in order to enable a party to maintain an action in this State, said: “The question here has relation to the legal residence of the parties. And within the meaning of the statute providing for actions of this character, the place of which, the parties are residents is that of their permanent abode, which may be distinguished from their place of temporary residence. * * * In legal phraseology residence is synonymous with inhabitancy or domicile. And it is in this sense that the term resident is used in the provisions of the Code before referred to, and persons having that relation to this State are its citizens and residents, and for the purposes of the relief like that in view of this action, they are subject to the jurisdiction of its courts.”

In Hewes v. Hewes (16 N. Y. Supp. 119) Ingraham, J., said: “It is clear, however, that the residence spoken of in the section of the Code cited is an actual residence of each of the parties and not the theoretic residence of the wife which is presumed to follow that of the husband. The language used is in the plural. It is the parties that must be residents of the State, to entitle either of them to maintain the action. "x" * "x" ” (See, also, Ramsden v. Ramsden, 28 Hun, 285; Toosey v. Toosey, 14 Daly, 537; 3 N. Y. Supp. 951.) It is the actual residence of both parties which gives the court jurisdiction. If this be true, then the plaintiff cannot maintain this action. Had she been, at the time the action was commenced, a resident of the State, she could do so, because both of the parties would, in that case, have been residents.

The order appealed from is reversed and the motion granted.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed and motion granted.  