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both of them, be inhabitants of the same state. Id. art. 12. And our state's constitution (Id. art. 3, § 4) provides for an enumeration of the inhabitants of the state every 10 years.
The class of cases furnishing the best analogy, as it seems to .me, are those where the jurisdiction of the court in the particular case depended upon the fact of residence or inhabitancy of one or both of the parties in a particular town or county. The early case, In re Wrigley, an insolvent debtor, reported (supreme court) in 4 Wend. 602, and (court of errors) 8 Wend. 134, furnishes a good illustration. The statute provided that every person applying for a discharge under the insolvent law must make his application in the county of which he was an "inhabitant.” The question arose whether Wrigley was an inhabitant of New York city. If not, the court could not grant him a discharge. The question is quite thoroughly discussed by Chief Justice Savage in the supreme court, and by Chancellor Walworth and Senator Allen in the court of errors. The substance of the decision is that a mere sojourner or lodger is not an inhabitant; and the word means "a fixed and permanent abode or dwelling place for the time being, as contradistinguished from a mere locality of existence."
Probate cases furnish an excellent analogy. In the case of Ishan v. Gibbons, 1 Bradf. Sur. 79--93, Surrogate Alex W. Bradford exhaustively discusses the question and reviews the cases. Thomas Gibbons died in New York city, May 16, 1826, and the question at issue was whether he was then an inhabitant of that city. The surrogate, after speaking of the loose construction given to the words in attachment cases, (before noted,) says:
"I have not been referred, however, to any authority which tends to show that, in statutes relating to testamentary matters, the word 'inhabitant' or ‘resident' is to be taken in a limited sense, so as to mean actual residence, in contradistinction to domicile.”
And again (page 82) the surrogate says: "So far as our own constitution and laws speak of 'residents,' the idea of a fixed and permanent dwelling generally seems to be involved. Thus, in the qualifications of citizenship, and in the laws relating to taxes, the militia service, and the settlement of the poor, 'residents' and 'inhabitants' are mentioned as convertible terns."
Again, (same page:) “The constitutional definition of 'habitancy' is the place where a man dwells, or has his home; in other words, his domicile.”
Kennedy v. Ryall, 67 N. Y. 380, was another probate case. The jurisdiction of the surrogate to issue letters depended upon the question whether or not the intestate was, at the time of his death, an inhabitant of the city of New York, within the meaning of the statute. The intestate's father intestate being an infant) had previously resided in England, but had been in New York city about seven months, and his wife and child came over to join him, and live with him, in New York. He had located and was at work in New York. He testified he came there to make a home and a living. He was held to have been an inhabitant of New York city. Miller, J., says, (opinion of court, page 386:)
"Generally speaking, 'domicile' and 'residence' mean the same thing; and an inhabitant is defined to be one who has his domicile in a place, or a fixed re idence there."
It will be noted in this case that the intestate lived with his family in New York, and intended making a home there. In the language of the decisions, “the act and intent both concurred.”
The first case to define, in simple language, a reasonable guide to the meaning of the words when occurring in a statute is People v. Platt, 117 N. Y. 159, 22 N. E. Rep. 937. Danforth, J., delivering the opinion of the court, says, (page 167, 117 N. Y., and page 938, 22 N. E. Rep.:)
"The relation is one which has a legal sanction, and in some cases secures its possessor a settlement and pauper privileges under the poor laws; and, in all cases where a statute provides residence as a qualification for the enjoyment of a privilege or the exercise of a franchise, the word is equivalent to the place of dom. icile of the person who claims its benefit.” (The italics are mine.)
The question came again before the court of appeals in De Meli v. De Meli, (April term, 1890,) 120 N. Y. 485, 24 N. E. Rep. 996. It was an action for limited divorce, and the jurisdiction of the court depended upon the question whether or not De Meli was or was not a resident of the state of New York, within the meaning of the statute granting the court jurisdiction in such cases. The answer of the defendant denied that he was such resident. Bradley, J., writing the opinion, says, (page 491, 120 N. Y., and page 998, 24 N. E. Rep.:)
“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.' "The purposes for wbich residence is not determined by domicile are those within the contemplation of some statute."
The learned judge names the statutes for levy of attachments and assessments of taxes on personal property as illustrations, and adds:
"Then, and for the purposes of such remedy and taxation, the place where the party actually resides may, as has been held, be treated as that of his residence, although his domicile is elsewhere."
It seems to the court that these cases may be regarded as establishing the legal proposition that the words “resident and inhabitant," in the statute under consideration, mean a locality of existence as permanent and firmly fixed as is legally conveyed by the word 'domicile,' and that at once disposes of this appeal. It has long been settled law that every person has a domicile somewhere. If he has not acquired one elsewhere, he retains his domicile of origin, and to effect a change of domicile the fact and intent must concur; that is, there must be, not only a change of residence, but an intention to abandon the former domicile, and acquire another as the sole domicile. Dupuy v. Wurtz, 53 N. Y. 556; De Meli v. De Meli, 120 N. Y. 491, 24 N. E. Rep. 996. Rapallo, J., states the rule clearly in the Dupuy Case, 53 N. Y. 556. He says, (page 561:)
"There must be both residence in the alleged adopted domicile, and intention to adopt such place of residence as the sole domicile."
The trouble with these two young men gaining a settlement in the town of Hector is, there is no evidence of an intention on their part to make that town their home. Indeed, it would be absurd to claim that either of them had any such intention. They came to this country to work on railroad work, and have been so employed all of the time since arriving in the United States, up to the time of their injuries. When one railroad job was finished, they have gone to another. They were not employed for any definite time. They were liable to be discharged at any moment. Each could leave the work when he had a mind to, and after a certain time a new man took the same number. The fact that the job kept them on Hector soil more than one year does not alter their status. Their manner of lodging, eating, and obtaining their supplies, all show that the stay of the men in Hector was intended to be temporary, and only during the continuance of the railroad work. Outside of the unmistakable inference from their acts, Zebedio's testimony shows that he had no fixed intention of making his permanent home in Hector. He says that he had not yet made up his mind not to go back to Italy. Whether he would go back or not depended upon whether or not he could learn to speak the English language. His wife, children, and mother live in Italy, and he sends them money for their support. It seems to the court that with about as much reason it might be claimed that "Gipsy Josh” and his band become residents and inhabitants in the place where they locate their palace sleeping coaches, tents, dogs, and horses, for a temporary sojourn, which should be prolonged to 13 months by reason of sickness or some other unforeseen occurrence, as to claim that these temporary sojourners became "residents and inhabitants” of the town of Hector.
The question is not before this court as to whether or not these men were state paupers, within Laws 1873, c. 661, § 1, amended, as to other sections, by Laws 1874, c. 464. Section 1 of the act of 1873 provides that, "Every poor person who is blind, lame, old, impotent, or decrepit, or in any other way disabled or enfeebled so as to be unable by work to maintain himself, who shall apply for aid, * * and who shall not have resided sixty days in any county of this state within one year preceding the time of such application shall be deemed to be a state pauper, and shall be maintained as hereinafter provided."
Judgment must be given in favor of the town of Hector upon the appeal as to both Zebedio and Depowel, with costs of the appeal against the town of Dix. Inasmuch as the cases are so nearly alike, and the preparation for trial and argument substantially the same in each, only one bill of costs should be allowed.
STRAUSS v. VOGT.
(Superior Court of New York City, General Term. July 3, 1893.) ATTACHMENT-MOTION TO VACATE-RES JUDICATA.
Code Civil Proc. & 682, providing that a defendant, or his assignee, may lawfully move to vacate an attachment against the property of defendant, does not allow such a motion by the assignee where similar motions theretofore made by defendant have been denied.
Appeal from special term.
Action by Ferdinand A. Strauss against John Henry Vogt. After an attachment of defendant's property, defendant made an assignment for the benefit of creditors, and Edward E. Thomas was appointed assignee. From an crder dismissing an order to show cause obtained by such assignee, and substantially denying to the assignee the right to move to vacate the attachment, the assignee appeals. Affirmed.
The following is the opinion of MCADAM, J., at special term: Under section 682 of the Code, a defendant or his assignee may lawfully move to vacate an attachment against property. It is a right belonging to either, but does not necessarily extend to both. The defendant moved First, on the original papers; second, on counter affidavits. Both motions were denied, and an appeal is now pending from the decision last made, in which the assignee may be heard at general term. These decisions, until reversed, preclude the assignee from obtaining a rehearing of the matters adjudicated. He merely succeeds to the rights of the assignor, subject to the litigation then pending. The adjudications made bind the assignee on account of the privity between the parties. See Wells, Res Adj. $ 32; Ludington's Petition, 5 Abb. N. C. 307; and, by analogy, see rule as to privity bailor and bailee, Wells, Res Adj. g 67. Suppose the present application should be denied upon the merits, what is to prevent successive assignees from making similar motions, founded on their newly-acquired interest in the property? The line must be drawn somewhere, or motions of this kind may become interminable. The motion by the assignee will therefore be denied, and upon the ground that he has, under the circumstances, no right to a rehearing without leave of the court first had and obtained. No costs.
Argued before FREEDMAN and GILDERSLEEVE, JJ.
PER CURIAM. The order should be affirmed, with $10 costs and disbursements, on the opinion of the special term.
(4 Misc. Rep. 382.) FRICKEL. T. FRICKEL.
(Superior Court of New York City, Special Term. July 28, 1893.) 1. DIVORCE--ALIMONY PENDENTE LITE.
Where defendant, in an action for divorce on the ground of adultery, denies the charge on oath, she will be granted an allowance for counsel fers :und alimony pending the action, though plaintiff submits affidavits in support of the charge, unless defendant's guilt appears beyond reasonable doubt.
2. SAME-POVERTY OF HUSBAND.
In an action by a husband for a divorce on the ground of adultery, which defendant denies ('n oath, the poverty of plaintiff is not a defense to an application for alimony pendente lite.
Action by Otto J. Frickel against Alice Frickel for an absolute divorce, on the ground of adultery. Defendant moves for ali. mony and counsel fees pending the action. Motion granted.
Fowler & Leonard, for the motion.
GILDERSLEEVE, J. This is a reargument, upon additional affidavits, of a motion by defendant for alimony and counsel fee pendente lite. The husband sues for an absolute divorce, on the ground of adultery. The answer of the wife denies the adultery on her part, and alleges adultery on the part of the husband. The affidavits presented by the wife allege her extreme poverty and dependence for support on her relatives. She also presents several affidavits to the effect that she leads a proper life, and bears a good reputation. The husband submits affidavits in support of his charge of adultery on the part of the wife, and also alleges poverty as a further reason why the court should not grant any alimony or counsel fee. It is true that, upon a motion for alimony and counsel fee pendente lite by the wife, in a case where the suit is brought by the husband for absolute divorce on the ground of adultery, if it appears from the facts before the court that the wife's guilt and misconduct are so glaring, and the husband's innocence and ultimate success in the action so clear and certain, as to preclude any cause for reasonable doubt, the court will be justified in de nying the application. Leslie v. Leslie, 6 Abb. Pr. (N. S.) 206; Kock v. Kock, 42 Barb. 515; Griffin v. Griffin, 23 How. Pr. 189; Carpenter v. Carpenter, 19 How. Pr. 539. But the general rule is to award alimony and counsel fee almost as a matter of course, where a substantial defense is disclosed, and not to try the merits upon conflicting affidavits. Leslie v. Leslie, 6 Abb. Pr. (N. S.) 205; Wright v. Wright, 1 Edw. Ch. 62; Hammond v. Hammond, 1 Clarke, Ch. 151. Where the wife is defendant in a suit for divorce, if she denies on oath the charge of adultery, she is, as a general rule, entitled to an allowance for her support pending the litigation, and to a further sum to enable her to defend the action; and she is entitled to such allowance, where she denies her alleged guilt on oath, even though affidavits are read, on the part of the husband, showing the guilt of the wife, (Hallock v. Hallock, 4 How. Pr. 160, unless, indeed, it appears clear beyond reasonable doubt that the ultimate success of the husband in the litigation is inevitable. The question of the wife's guilt should not be tried by conflicting affidavits. Great injustice might be done if the husband were not compelled to furnish to his wife the means of having so important a question of fact decided in the usual way. The poverty of the husband forms no defense to such an application as this, although