Roberti v. Methodist Book Concern

1 Daly 3

• Court: New York Court of Common Pleas
• Decided: July 15, 1859
• Status: Published

Opinion

By the Court.

Hilton, J.

When the plaintiff, Henry H. Boberti, left this city two years ago, lie was a reside fit of this State, his domicil <md family having been located here for about two years previously. .

Although, by reason of his prolonged absence, he might he proceeded hgainst by attachment at the instance of a creditor, yet he is still to be deemed a resident of this State for all other purposes.

A married man having his family fixed at one place, hut doing business at another, the former is to be deemed bis place of residence ; and while his family so remain fixed, he cannot acquire a residence elsewhere : the rule being that his original domicil must prevail until lie acquires another. Phillimore’s Law of Domicil, §§ 23, 209 ; Matter of Thompson, 1 Wend. 44; Chaine v. Wilson, 1 Howard, 552, 558; Houghton v. Ault, Id., 78.

The case of Wright v. Black (2 Wend. 258), cited by respondent as controlling the present case, was prior to the Be-vised Statutes, and seems to be under a rule of Court made in January, 1799. Besides, it did not there appear that the plaintiff had a family, or any fixed place of abode. Order appealed from reversed with §10 costs. '