Penfield v. Chesapeake, O. & S. W. R. Co.

29 F. 494, 1885 U.S. App. LEXIS 2438

• Court: U.S. Circuit Court for the District of Eastern New York
• Decided: December 28, 1885
• Status: Published

Opinion

Benedict, J.

The question upon which the motion made at the trial to direct a verdict for the defendant was decided in favor of the defendant was whether the plaintiff’s cause of action, being for an injury reccived while in the defendant’s cars on the thirtieth of November, 1882, was barred by section 890 of the New York Code of Civil Procedure. The defendant is a resident in and a citizen of Tennessee, (Muller v. Dows, 94 U. S. 444,) and by virtue of section 390 of the New York Code of Civil Procedure the statute of Tennessee limiting the time to commence an action like this must control. By that statute the plaintiff lost his right of action on November 30, 1883, unless previous to that date he became a resident of the state of New York.

The undisputed facts proved were that prior to August, 1888, the plaintiff resided in St. Louis. In August, 1883, he formed the intention to take up his resilience in Brooklyn, New York. In pursuance of that intention, in August, 1883, he sent his wife and children to Brooklyn, and, upon arriving there, his wife hired a house, in which she and her children thereafter lived. The plaintiff himself, however, did not come to .Brooklyn till January of the next year. Upon this proof, the question arises whether the fact that 1lio plaintiff, prior to November 30th, formed the intention to change his residence to Now York, and the further fact that ho had gone so far in carrying that intention into effect as to send his wife and children to Now York to live, coupled with the fact that ho himself did not come to New York until January, 1884, were sufficient to give him a residence in New York prior to November 30, 1883. Upon this question 1 am of the opinion that mere intention to change his residence does not affect that chango, but that, coupled witli such an intention, there must- bo acts done, and that one act must lie that of living for some period of time in the place of intended residence. Residence involves personal presence. 2 Bouv. Law Dict. 582.

The fact that the plaintiff’s family lived in New York prior to November 80, 1888, did not make him a resident of New York. A man may have his homo or domicile in this state, and he at the same time a resident of another. City of New York v. Genet, 63 N. Y. 646. “Change of mind may lead to a change of residence, but cannot with any propriety be deemed such of itself.” Frost v. Brisbin, 19 Wend. 14. To the intention to lake up the now residence, must., in my opinion, be added the fact of living in the now place for some period of time, I do not say how long, llore the plaintiff did not follow his wife to the slate of New York until January, 1884. Up to that time, although he sent his wife to New York in August, 1883, it was optional to Mm to abandon Ills intention without affecting his residence. If, instead of coming to Now York in January, 1881, ho had, under a change of intention, recalled his wife to Bt. Louis, it would scarcely be argued, I should suppose, that he had lost his residence in St. Louis by reason of what his wife and children had done in New York. Under such a state of facts, it would doubtless be held that the fact that he himself continued to live in St. Louis was sufficient to prevent a loss of residence there. If so, the fact that ho did not come to Now York until January, 1884, compels the decision that he had npt acquired a residence in New York on November 30, 1888. The motion for a new trial is therefore overruled, and judgment must be entered on the verdict.