De Meli v. De Meli

• Decision Date: 03 June 1890
• Citation: 120 N.Y. 485,24 N.E. 996
• Parties: DE MELI v. DE MELI.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 485

24 N.E. 996

DE MELI

v.DE MELI.

Court of Appeals of New York, Second Division.

June 3, 1890.

Appeal from judgment of the general term of the supreme court in the first judicial department, affirming judgment entered upon decision of the special term.

The action was brought for separation on the alleged ground of cruel and inhuman treatment. The defendant, by his answer, put in issue the allegations of the complaint essential to that relief, and by way of counter-claims alleged abandonment of him by the plaintiff; also the commission by her of adultery; and asked as affirmative relief- First, separation; or, second, a divorce. The trial court determined that neither party was entitled to the relief sought, and awarded costs and a sum for counsel fee to the plaintiff. Both parties appealed to the general term and to this court. Code Civil Proc. N. Y. §§ 1756, 1763, providing for actions for divorce and separation, require the parties, under certain circumstances, to be residents of the state.

John E. Parsons, for plaintiff.

Herbert B. Turner, for defendant.

BARDLEY, J.

The parties were married at Dresden, in the Kingdom of Saxony, in March, 1870, and in October, 1881, she, at that place, left her husband, came to New York, and in March, 1882, commenced this action for separation by obtaining an order for publication of the summons, and causing the summons with the complaint to be personally served upon the defendant in the city of Dresden, Germany. The defendant, by his answer, denied that he was a resident of the state of New York at the time of the commencement of the action, and alleged that the court was without jurisdiction of its subject-matter; but, with a view to affirmative relief, he added that, in the event it should be determined that he was then a resident of this state, his allegation to that effect should be effectual to support his answer in that respect, setting forth his counter-claims. The plaintiff gave much evidence with a view to establish the alleged cruel and inhuman treatment of her by the defendant, and the evidence of the latter tended to controvert, in the main, that given by her in that respect. And the evidence on the part of the defendant, bearing upon his alleged counter-claims, so far as it tended to support the charges made against her, was in conflict with that given on the part of the plaintiff to meet it. The findings of fact by the trial court, relating to the charges and counter-charges of the parties, were supported by evidence, and the conclusion necessarily followed that neither party was entitled to relief upon the issues presented for trial. And none of the exceptions to the conclusions of the court, and to the refusals to find as requested, other than that relating to the place of residence of the defendant at the time of the commencement of the action, require any further consideration of this review. The facts quite fully appear in the opinion of Judge RUMSEY at special term. 67 How. Pr. 20. The court found that at the time of the marriage in Dresden, Saxony, and since then to and including the time of the commencement of this action, both of the parties were, and continued to be, residents of the state of New York. It must be assumed that until the plaintiff left the defendant at Dresden her place of residence was determined by his, and inasmuch as the parties were married abroad, and the alleged transactions upon which the charges were founded took place beyond this state while the plaintiff was absent from it, the fact that the parties were residents of this state at the time the action was commenced was essential to enable the court to entertain the action for the purpose of the relief sought in it by the parties. Code, §§ 1756, 1763. It is contended by the defendant's counsel that there was no opportunity given by the evidence to the court to find that the defendant was a resident of this state at the time the action was commenced. When the parties were born, their parents were residents of the city of New York. From 1846 or 1847, when the defendant was four or five years of age, a considerable portion of the time prior to his marriage, he was in Europe with his parents, who within that period spent portions of their time there and in the state of New York. The last time, prior to that event, of their return to Europe, was in 1868, when they went to Dresden. In that year the plaintiff went abroad with her parents, and after traveling about some they stopped at Dresden. Shortly after their marriage the parties came to New York, and from thence they went to Colorado, where the defendant was interested in some mines. They returned to Dresden in the fall of 1870, and thereafter they remained in Europe until the plaintiff came away and to New York, in October, 1881. While Dresden Was treated by them as their European home, a considerable portion of their time was occupied in traveling. The fact that they remained there as they did, would, if nothing appeared to the contrary, raise the presumption that the defendant had ceased to be a resident of the state of New York. But the question whether that relation to this state had been severed was dependent upon his intention. There was some evidence tending to prove that he regarded himself a resident of the state of New York, and that his purpose was continued during his absence from it to return to this state as his place of residence. The weight of the evidence on that subject is not here for consideration. That question was disposed of in the court below. Bassett v. Wheeler, 84 N. Y. 466. It is true, the defendant testified that he was a resident of Dresden, and had no intention of returning to the state of New York to reside, and contradicted the evidence on the part of the plaintiff tending to the contrary. But the fact that he was called as a witness by the plaintiff when he gave such evidence did not conclude her on the question of his credibility on that subject. Becker v. Koch, 104 N. Y. 394, 10 N. E. Rep. 701.

It is, however, urged that although the continued purpose of the defendant, while absent from it, may have been to return to this state, he was, nevertheless, a resident of Dresden, and not of the state of New York; and that his place of residence was not determined by his domicile. That is so for some purposes, and in cases where it is applicable a change of the latter is not essential to the change of the former. In re Thompson, 1 Wend. 43;Frost v. Brisbin, 19 Wend. 11;Haggart v. Morgan, 5 N. Y. 422;Bell v. Pierce, 51 N. Y. 12. The question here has relation to the legal residence of the parties; and within the meaning of the statute providing for actions of this character the place of which the parties are residents is that of their permanent abode, which may be distinguished from their place of temporary residence. The defendant was not without his domicile, and, unless another was acquired by him elsewhere, he retained his domicile of origin. And to effect a change of it the fact and intent must concur. Crawford v. Wilson, 4 Barb. 504;Dupuy v. Wurtz, 53 N. Y. 556;Gilman v. Gilman, 52 Me. 165. In legal phraseology, ‘residence’ is synonymous with ‘inhabitancy’ or ‘domicile,’ and it is in this sense that the term ‘resident’ is used in the provisions of the Code before referred to, and persons having that relation to this state are its citizens and residents, and, for the purposes of the relief like that in view in this action, they are subject to the jurisdiction of its courts. The purposes for which residence is not determined by domicile are those within the contemplation of some statutes. Such application has been made of statutes providing for levy of attachments on the property of non-residents and the assessment of taxes on the personal property of residents. Then, and for the purpose of such remedy and taxation, the place where the party actually resides may, as has been held, be treated as that of his residence, although his domicile is else where. Here there was some evidence that the defendant's domicile remained in this state, and consequently the conclusion that he was a resident of it when the action was commenced is not reviewable on this appeal. In Harral v. Harral, 39 N. J. Eq. 279, there was no...