Opinion
December 28, 1911.
Sydney A. Syme, for the appellant.
Herbert C. Smyth [ Walter C. Stevens, Frederic C. Scofield, Faulkner Hill and Amos H. Stephens with him on the brief], for the respondents.
This action is to recover damages for personal injuries, and the motion was made upon the ground that at the time the action was brought neither party resided in the county of Westchester. The plaintiff at the time he was injured resided in the city of New York. He says that upon leaving the hospital where he was taken immediately after the accident, he took up his residence in the county of Westchester, and in doing this he acted upon the advice of his physician; that he did not change his residence in order that this action could be prosecuted in Westchester county, but that he intends to make the city of Mount Vernon his permanent voting residence. In this respect the case at bar differs from Hislop v. Taaffe ( 141 App. Div. 40).
We think that the question of plaintiff's residence was largely one of intention, and as it is made to appear that he changed his domicile in good faith, it was error for the learned justice at Special Term to make this order and it must be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.
JENKS, P.J., HIRSCHBERG, THOMAS and CARR., JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.