Monteiro v. St. Just Steamship Co.

123 Misc. 8, 204 N.Y.S. 3, 1924 N.Y. Misc. LEXIS 772

Opinion

Callaghan, J.

This motion is to reargue a motion made and granted vacating an order requiring the plaintiff to give security for costs. The plaintiff is not a citizen of this country. He entered the country as a seaman at the port of Philadelphia- and, because of an injury received there, he was sent ashore for treatment. He afterwards came to New York and took up a residence in Brooklyn. For about seventeen years prior to the beginning of this action, he has been sailing on vessels making ports in the United States. It is the contention of the defendant that plaintiff cannot have a residence in this country as he did not enter the country pursuant to the Immigration Law. Section 1522 of the Civil Practice Act provides that a person residing without the state shall give security for costs. The statement of plaintiff that he resides at 91 Hamilton avenue, Brooklyn, is not contradicted. He can reside at that address and at the same time have a domicile elsewhere. It was the confusion between “ residence ” and “ domicile ” which has no doubt led to the granting of the order requiring security for costs. It is the actual “ residence ” of a plaintiff and not his “ domicile ” .that determines the question of security for costs. The statute is not restricted to aliens any more than to others. An alien may acquire a residence while temporarily in this country which would bring him within the provisions of the statute. Norton v. Mackie, 8 Hun, 520; Matter of Austen, 13 ; Flaherty v. Cary, 25 id. 195; Barney v. Oelrichs, 138 U. S. 529, 532. The motion for a reargument is denied, with ten dollars costs.

Ordered accordingly.