Opinion
286 A.D. 1116 145 N.Y.S.2d 553 Application of F. Maxson NEAL and Ruth L. Neal, to have their names added to the Register of voters of the First Election District of the Town of Lincklaen, Chenango County, New York. Supreme Court of New York, Third Department November 7, 1955.
William J. Gordon, Norwich, for the Neals.
Joe Schapiro, Hamilton, for Inspectors of Election.
Before FOSTER, P. J., and BERGAN, COON and ZELLER, JJ., concur.
PER CURIAM.
On remission to the County Court of Chenango County, 286 A.D. 1114, 145 N.Y.S.2d 551, this proceeding affecting the right of petitioners to register as voters in the Town of Lincklaen has been tried and a record of testimony developed. The court has directed the Board of Registry to register the names of petitioners for the election tomorrow. Where a voter has more than one place of abode, the test commonly applied in election registration cases is the place where he lives physically. Here there is evidence which the County Court was entitled to credit that petitioners were physically domiciled in the Town of Lincklaen at least 30 days before election day. Petitioners testified they slept and had their meals there. Thus, intention, which generally controls place of residence, is here sustained by actual physical presence which tends to support the finding of domicile and residence made by the County Judge. In the light of this conclusion it is unnecessary to pass on the question of the place of residence of petitioners between May 1 and October 7, 1955.
Viewing the record most favorably to appellants there remains an issue of fact from which debatable inferences might possibly be drawn as to their voting domicile, and under such circumstances the court below was justified in granting the order, and thus leaving it to respondents to swear in their votes if challenged. Matter of Goodman, 146 N.Y. 284, 40 N.E. 769.
Order affirmed, without costs.