Bischoff v. Inter-City Auto Transport Corp., INTER-CITY

• Decision Date: 02 October 1959
• Docket Number: INTER-CITY
• Citation: 19 Misc.2d 617,192 N.Y.S.2d 922
• Parties: Bertha BISCHOFF, Plaintiff, v.AUTO TRANSPORT CORPORATION and Rootes Motors, Inc., Defendants.
• Court: New York Supreme Court

Page 922

192 N.Y.S.2d 922

19 Misc.2d 617

Bertha BISCHOFF, Plaintiff, v. INTER-CITY AUTO TRANSPORT CORPORATION and Rootes Motors Inc., Defendants.

Supreme Court, Special and Trial Term, New York County, Part II.

Oct. 2, 1959.

Gerome J. Leone, New York City, for plaintiff.

Caverly, Dimond, Dwyer & Lawler, New York City, for defendant Inter-City Auto Transport Corp.

Thomas V. Kingham, New York City, (John B. Cartafalsa, Brooklyn, of counsel), for defendant Rootes Motors, Inc.

SAUL S. STREIT, Justice.

This is a motion to amend the summons so as to give plaintiff's residence as New York County in place and in stead of Westchester County, to reconsider the denial of a Rule V preference, and to grant the cause a preference under Rule 151.

The Rule V preference was denied by reason of the fact that the summons revealed plaintiff's residence to be Westchester County. The application was permitted to be renewed upon an affidavit by plaintiff concerning her residence at the commencement of the action.

The question posed here is whether at the commencement of this action the plaintiff was a resident of New York County. At the time of the accident which occurred on May 6, 1957 in the County of New York plaintiff who at that time was 70 years old was a 'sleep-in' maid in a private residence in Westchester County. She had no other residence than the said place where she was working. Plaintiff sustained very serious injuries, and was removed to the New York Hospital where she remained for four weeks, and was then transferred to the Goldwater Memorial Hospital, also in New York County, where she remained until the date of her discharge in December, 1957. Shortly after the accident and while plaintiff was at the New York Hospital, her employer returned plaintiff's clothes and advised her that she was obliged to obtain other help.

The action was commenced on September 30, 1957. At that time plaintiff was a patient at the Goldwater Memorial Hospital as aforesaid, and at that time plaintiff contends she was a resident of New York County. Defendants argue that a temporary stay at a hospital is insufficient to predicate residency. This might be so in the ordinary case, for it is well settled that a domicile continues until another is acquired. In the case at bar, however, plaintiff's residence in Westchester County depended upon the continuance of her employment. When her employer terminated this employment, plaintiff's residence in Westchester County came...