In re Goodman

• Decision Date: 28 May 1895
• Citation: 146 N.Y. 284,40 N.E. 769
• Parties: In re GOODMAN. Appeal of BAINTON.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 284

40 N.E. 769

In re GOODMAN. Appeal of BAINTON.

Court of Appeals of New York.

May 28, 1895.

Appeal from supreme court, general term, First department.

Application of Oscar H. Goodman to strike from the list or registry of voters of the Twenty-Fifth election district of the Twenty-First assembly district the name of Henry W. Bainton. From a judgment of the general term (31 N. Y. Supp. 1043) affirming an order of the special term granting the application, said Bainton appeals. Affirmed.

Jos. A. Blanchard and Thos. F. Wentworth, for appellant.

Charles H. Knox and Louis H. Hahlo, for respondent.

FINCH, J.

It is objected to this appeal that the question involved has become purely abstract, since the election has passed for which the intending voter registered, and restoring his name to the registry from which it was removed would be an idle ceremony, without the least practical result. But the incident is of a recurring character, and likely to occasion a repeated denial of the asserted rights, and the point in dispute is one of public interest, and requiring official action, which needs some degree of direction in view of expressed differences of opinion.

It is conceded by the respondent that the intending voter was a resident of the state and of the county, and entitled to vote at the election. What is denied is that he acquired any right to vote in the election district in which the seminary which he entered and in which he took rooms was situated. It is admitted that he could have lawfully registered from Eighty-Fourth street, which was his last residence prior to his removal to the seminary, but in a different election district, and would have been a qualified voter there; the precise contention being that he did not lose his residence there by removing to the seminary, nor gain a new residence in the seminary district by his presence in it as a student. I think that is a correct construction. It does not disfranchise the voter, but determines the place where he may lawfully vote. In the case of Silvey v. Lindsay, 107 N. Y. 55, 13 N. E. 444, we held that the removal to the Soldiers' Home at Bath by one whose legal residence was in New York did not, on the one hand, give him a new voting residence at Bath, nor, on the other, deprive him of his old voting residence in New York. We said he could go back there and vote, and was to be regarded as temporarily absent therefrom. Here the presence of Bainton in the seminary was as a student, and for the purposes of a student only, and by that removal he neither gained a new residence in the seminary district nor lost his prior one in the Eighty-Fourth street district. He could have registered in the latter and voted at its poll, and, if challenged, could have taken the oath that he was a resident of that district, as he legally remained, although having no actual abode in it. He could lose such residence, of course, but did not do so by the mere fact of taking rooms in the seminary as a student. We do not mean to say that a voter may not change his legal residence into a new district in spite of the fact that he becomes a student in an institution of learning therein; but the facts to establish such a change must be wholly independent and outside of his presence in the new district as a student, and should be very clear and convincing to overcome the natural presumption. In the present case there were no such facts. Presumably, rooms in the seminary rented to students are to be occupied only during the prescribed period of study, and not permanently as a residence, and there was nothing before the court to show any change of residence beyond the...