Opinion
February, 1893.
Charles H. Lellman, Jr., for plaintiff (respondent).
Geo. Carlton Comstock, for defendant (appellant).
A person may be domiciled in one state and resident of another. Frost et al. v. Brisbin, 19 Wend. 11. His domicile is the place to which he intends eventually to return and there to remain ( Matter of Thompson, 1 Wend. 43), while his residence comprehends no more than a fixed abode for the time being, as contradistinguished from a place of temporary sojourn. Matter of Wrigley, 8 Wend. 134.
On the hearing of the motion to vacate the attachment it appeared from the affidavit of Elizabeth H. Pratt, which was submitted for the purposes of the motion on defendant's behalf, that at all times prior to the removal of her family, which consisted of herself and two sons, one of them, the defendant, to New Haven, Conn., their domicile was in St. Louis, Mo., and that about the year 1887 the removal to New Haven was effected for no other purpose than to complete the sons' education. The St. Louis domicile was, therefore, not abandoned, and as at the time of the removal to New Haven defendant was an infant his domicile was that of his mother. Lamar v. Micou, 112 U.S. 452.
St. Louis, having been shown to be defendant's domicile of origin, its continuance, both during his minority, and thereafter, must be presumed until it satisfactorily appears that he has established a domicile of choice. 7 Lawson's Rights, Remedies Practice, 6067, § 3848. No attempt was made by defendant to prove a domicile of choice, but instead he endeavored to show that when the attachment was issued he was not a resident of New Haven, but of New York. Plaintiff's right to the attachment, however, was not dependent upon the fact of defendant's residence in New Haven, but upon the fact of his nonresidence within the state of New York.
In June 1890, when defendant was but twenty years of age, he came to the city of New York to venture in the business of a theatrical manager. For this purpose he established an office, and after having at intervals lived at boarding houses and hotels, about February, 1892, rented apartments at 250 West Thirty-ninth street, in said city, which he in turn abandoned shortly before July fifteenth of the same year, when, as he says himself, he stored his furniture and went to Old Orchard, Maine, there to spend his summer vacation. On July twenty-eighth, concededly while defendant was without the state, the attachment was issued.
The facts narrated show that at the time of issuing the attachment defendant had no fixed abode within, and that he was, therefore, at the time not a resident of the state of New York. Assuming that he had a general intention of future return, that fact alone did not constitute a continuance of his abode ( Wood v. Hamilton, 14 Daly, 41; Weitkamp v. Loehr, 53 N.Y. Super. Ct. 83); nor was defendant's own declaration of his intention to renew his abode at a stated time conclusive. Dietlin v. Egan, 46 N.Y. St. Repr. 762. His domicile of origin was in St. Louis. He had not acquired a domicile of choice. Actual abode, for business accommodation only, did not effect a change of domicile. Matter of Wrigley, 8 Wend. 134, 139. It could only be acquired by concurrence of actual residence and intention permanently to remain (5 Am. Eng. Ency. of Law, 862); and without satisfactory evidence that defendant, at the time when the attachment was issued, had a fixed place of abode within the state, his residence must be presumed to be at the place of his domicile.
The order appealed from should be affirmed, with costs.
BOOKSTAVER and PRYOR, JJ., concur.
Order affirmed.