App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. since on or about the 1st day of September, 1899, your petitioner has resided at St. Joseph's Seminary, which is in the First Election District of the Seventh Ward of the City of Yonkers; that on or about the 24th day of June, 1901, while a resident of said Seminary, petitioner addressed a letter to the Mayor of the City of Yonkers," and a similar letter to the board of registry of the election district, stating that he had made the district his residence and domicile, actual and legal, and that the purpose of the letters was to give public evidence of that fact; that "when your petitioner came to St. Joseph's Seminary he intended to make said seminary his residence for all purposes, and since that time he has had no other residence, legal or otherwise; that petitioner is a citizen of the United States, over twenty-one years of age, and has resided in the State of New York for more than one year, last past, and in the County of Westchester for more than four months, last past, and in the First Election District of the Seventh Ward of the City of Yonkers for more than thirty days, last past," etc. Upon this state of facts, aside from the formal averments of having appeared and demanded registration, which was refused, the petitioner asks for an order directing the board of registration to enter his name upon the roll, and the question presented is whether the petitioner has established facts which entitled him to the order. The learned justice of this court before whom the motion was made denied the same, and from the order entered the petitioner appeals to this court. * * Section 3 of article 2 of the State Constitution provides: "For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States; nor while a student of any seminary of learning," etc. It is important, in considering the rights of the petitioner, that it should be known where his previous residence had been and what steps he had taken looking to an abandonment of such residence, for the law is well settled that the previous residence remains for the purposes of voting until a new one has been acquired, and there can be no such acquisition merely by an abode as a student in an institution of learning. (Matter of Goodman, 146 N. Y. 284, 288.) If the petitioner was a resident of the State of Rhode Island and came into the State of New York for the purpose of entering St. Joseph's SECOND DEPARTMENT, JULY TERM, 1903. [Vol. 86. Seminary as a student, this action on his part or any declaration of intention, not made with reference to matters entirely independent of the seminary, would have no bearing upon the question. He is not deemed to "have gained or lost a residence" by reason of his abode at the seminary as a student, and unless he has abandoned his residence in Rhode Island by some unequivocal act, as in the case of Barry (Matter of Garvey, 147 N. Y. 117, 120, 121), he could not have gained a residence for the purpose of voting in the State of New York. See the case of Yardley (Matter of Garvey, supra, 123.) As was said by FINCH, J., in Matter of Goodman (146 N. Y. 288): "I am unable to say that where the new abode is occasioned and explainable by and referable to the presence as a student without any independent facts showing a change of residence, not only intended but accomplished wholly outside of the student character, the new residence in the new district is acquired, because it is a change of residence merely from one district to another. In such a case I think the old residence remains and is not lost until, after the temporary sojourn as a student, a new residence is acquired." The petitioner does not suggest a single fact to show a change of residence outside of his abode at the seminary, either in his letter to the mayor or in his petition. He alleges that he is a citizen of the United States and must, therefore, have had a legal residence somewhere within the United States before entering the seminary, and as there is no evidence of any action tending to show that he had abandoned such residence or that he had ever done anything outside of taking up his abode at the seminary for the purpose of becoming a student, there is a complete lack of evidence of a change of resi dence and the petitioner, under the authorities, is not entitled to the order which he asks in this proceeding. In Matter of Barry (164 N. Y. 18, 21) the court close the discussion of a similar case with the following: "A person who is a legally qualified voter may leave his home in any part of the State and enter an institution of learning as a student; by this act he does not lose his residence for the purpose of voting at the place from whence he came. The fact that he is enrolled as a student in an institution of learning has no effect whatever upon his residence for the purpose of voting; he could if he chose acquire a residence at the place where the seminary is located, but this would have to be established by acts entirely SECOND DEPARTMENT, JULY TERM, 1903. App. Div.] distinct from his residence therein. The mere intention to change his residence would not suffice." The declarations of the petitioner made in a letter to the mayor of Yonkers and to the board of registry of the district are of no more consequence than his verbal declarations to the board of registry, and as no facts bearing upon the change of residence were placed before the court, which were independent of the temporary residence of the petitioner as a pupil in the seminary, we are clearly of opinion that the order denying the motion was proper. The order appealed from should be affirmed, with ten dollars costs and disbursements. BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. ANNA FISHER, Respondent, v. UNION RAILWAY COMPANY OF NEW YORK CITY, Appellant. Negligence— running a car at the rate of fifteen miles an hour in a dense fog into a wagon—a statement by the motorman that he discovered, and attempted to avert, the peril as soon as possible does not require a nonsuit · - who is competent to state the speed of the car. In an action to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant's cars, which, while traveling through a dense fog at a speed of fifteen miles an hour, ran into a wagon on the track ahead of it, the fact that the motorman testified that he discovered the peril as soon as possible and did everything in his power to avert the collision, does not require the court to nonsuit the plaintiff, as the credibility of the motorman is a matter for the consideration of the jury, and because, if it had not been for the excessive speed of the car, the peril, even if not sooner discovered, might have been successfully averted. A passenger upon the car on the occasion in question, who was a civil engineer of eleven years' experience, and who was at one time connected with the railroad business and had been accustomed to time the speed of cars by a watch, is competent to testify to the speed of the car on the occasion in question. APPEAL by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of West [Vol. 86. SECOND DEPARTMENT, JULY TERM, 1903. chester on the 19th day of December, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk's office on the 3d day of January, 1903, denying the defendant's motion for a new trial made upon the minutes. W. J. Townsend and Henry A. Robinson, for the appellant. Charles Pope Caldwell [Maurice E. Connally with him on the brief], for the respondent. HIRSCHBERG, J.: The plaintiff was injured while a passenger on one of the defendant's cars, which was run through a dense fog into a wagon on the track ahead of it. There was evidence that the car was running at the time as rapidly as fifteen miles an hour. The only exceptions taken by the defendant were to the refusal of the learned trial justice to nonsuit the plaintiff, and to the evidence referred to as to the speed of the car. Neither exception is availing. As to the first it is urged that there was no negligence established, inasmuch as the motorman according to his evidence discovered the peril as soon as possible and did everything in his power to avert the collision. This argument overlooks the fact that his credibility was a proper consideration for the jury. Moreover, the negligence asserted consisted in the speed of the car under foggy conditions, but for which the peril even if not sooner discovered might have been successfully averted. The question was submitted in a charge which was favorable to the defendant, and which included every request made by it. The witness who testified to the speed of the car was a passenger on the occasion in question, a civil engineer of eleven years' experience, at one time connected with the railroad business and accustomed to time the speed of cars by the watch. That such a person was competent to testify to the speed of a car has been frequently held, among other cases, in Salter v. Utica & Black River Rail road Co. (59 N. Y. 631); Northrup v. New York, O. & W. R. Co. (37 Hun, 295, 299); Scully v. New York, L. E. & W. R. R. Co. (80 id. 197); Strauss v. Newburgh Electric R. Co. (6 AppDiv. 264); Penny v. Rochester R. Co. (7 id. 595), and Garduhn v. Union Railway Co. (50 id. 602). App. Div.] SECOND DEPARTMENT, JULY TERM, 1903. The damages cannot be regarded as excessive, notwithstanding that there was no proof of permanent injury. The judgment and order should be affirmed. Present― GOODRICH, P. J., BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ. Judgment and order unanimously affirmed, with costs. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JACOB SEIB, Appellant, v. WILLIAM C. REDFIELD, Commissioner of Public Works of the City of New York, in the Borough of Brooklyn, Respondent. Civil service. — a person employed to furnish and drive a horse and wagon for the New York city department of public works is not a “person holding a position by appointment or employment.” An honorably discharged exempt fireman, engaged by the department of public works in the city of New York to furnish a horse and wagon to the city and to drive the same for a certain sum per day, occupies a contractual relation to the city and is not a 'person holding a position by appointment or employment," within the meaning of section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. by chap. 270 of the Laws of 1902). APPEAL by the relator, Jacob Seib, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of April, 1903, denying his application for a writ of mandamus for reinstatement as an employee in the department of highways in the borough of Brooklyn. Thomas J. O'Neill, for the appellant. James McKeen [ Walter S. Brewster with him on the brief], for the respondent. HIRSCHBERG, J.: We think the order denying the relator's application was proper, if for no other reason, because his relations with the municipal department were for services beyond his personal employment. His |