Schwartz v. Zim Israel Nav. Co.
| Decision Date | 03 December 1958 |
| Citation | 181 N.Y.S.2d 283,15 Misc.2d 576 |
| Parties | David SCHWARTZ, Plaintiff, v. ZIM ISRAEL NAVIGATION COMPANY, Limited, Defendant. |
| Court | New York Supreme Court |
Benjamin Isaacs, New York City, for plaintiff.
Kirlin, Campbell & Keating, New York City, for defendant.
The action is to recover damages for personal injuries allegedly sustained by plaintiff in an accident which occurred on a vessel owned and operated by defendant. The accident occurred while the vessel was on the high seas en route to New York from Haifa, Israel. Plaintiff, a citizen and domiciliary of Israel, was a passenger traveling to the United States on a non-immigrant visa for the purpose of obtaining medical treatment. Plaintiff's original visa permitted him to remain in the United States for six months. He obtained one extension for an additional six months' stay which has expired. He states, however, that he expects to obtain several more extensions so that he may continue to receive in this country certain necessary medical treatment.
Defendant is an Israeli corporation which does business in New York. It operates twenty-five ships, only two of which regularly call at this port.
The contract of passage contained the following provisions:
'This contract shall be construed, and all rights and liabilities and all disputes between the passenger or his executors, administrators and assigns and the Company or the Vessel, or any of their agents or servants, thereunder or in connection therewith or incidental thereto shall be determined, solely, in accordance with the Law of Israel.
'It is agreed that all disputes and matters whatsoever under, in connection with or incidental to these presents shall be litigated upon in and before the Courts of Israel to the exclusion of the Courts of any other country.
'Nothing in these presents contained shall in any manner whatsoever affect, alter, qualify or minimize the provisions of this Clause or any of them.'
Plaintiff insists that both he and defendant are residents of the State of New York; that this court has jurisdiction of the action and is without power to refuse to entertain it. On the other hand, defendant maintains that neither of these parties is a resident of the State, and that the court may, and, in the exercise of its discretion, should refuse to entertain jurisdiction.
It is clear that if either of the parties herein is a resident of this State, the court must entertain jurisdiction of the action (De la Bouillerie v. De Vienne, 300 N.Y. 60, 89 N.E.2d 15, 48 A.L.R.2d 798); if neither is a resident, the court, in the exercise of its discretion, may refuse to do so (Murnan v. Wabash Rwy. Co., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522; Taylor v. Interstate Motor Freight System, 309 N.Y. 633, 132 N.E.2d 878).
As stated above, plaintiff concedes that he is in New York temporarily. It is not suggested that he now has, or ever had, any intention to make this his permanent abode, or that he intends, or will be permitted, to remain here beyond the time necessary in connection with his medical treatment. The case of People v. Platt, 117 N.Y. 159, 167, 22 N.E. 937, 938, while not directly in point, contains language which, to this court, seems apposite here. The court said (117 N.Y. at page 167, 22 N.E. at page 938): 'And, in all cases where a statute prescribes 'residence' as a qualification of the enjoyment of a privilege or the exercise of a franchise, the word is equivalent to the place of domicile of the person who claims its benefit.' If this be the test to be applied in the instant case--and this court holds that it is--it follows that plaintiff is not a resident of this State within the meaning of section 224 of the General Corporation Law.
This conclusion is supported by the decisions in Bump v. New York, N. H. & H. R. Co., 38 App.Div. 60, 55 N.Y.S. 962, affirmed 165 N.Y. 636, 59 N.E. 1119; Tullock v. Delaware L. & W. R. Co., Sup., 127 N.Y.S. 946, affirmed 147 App.Div. 524, 132 N.Y.S. 88, and Randolph v. American Packing Co., 273 App.Div. 105, 75 N.Y.S.2d 187. These decisions make it clear that, in order to qualify as a resident within the meaning of section 224 of the General Corporation Law, a plaintiff must establish (1) his intent to make this State his permanent home, or (2) that he has no present intent to establish or have a permanent home elsewhere. See also Vol. 17A Amer. Jur., Domicile, § 27, p. 216.
To the extent that Greiner v. Bank of Adelaide, 176 Misc. 315, 26 N.Y.S.2d 515, and Von Petersdorff v. Insurance Co. of North America, 181 Misc. 907, 46 N.Y.S.2d 651, are to the contrary, they will not be followed in view of the appellate authorities cited above. However, it should be noted that in both Greiner and Von Petersdorff there were unusual circumstances which impelled the court to retain jurisdiction of the actions, and the opinions so state. Neither case is authority for the proposition that a mere temporary visitor is a resident of the State within the meaning of the statute. Woo Sung Ling v. City of New York, 276 App.Div. 1026, 95 N.Y.S.2d 908, and Taubenfeld v. Taubenfeld, 276 App.Div. 873, 93 N.Y.S.2d 757, also cited by plaintiff, are not to the contrary. Woo Sung Ling was an action against a domestic municipal corporation and the fact that plaintiff was illegally in the United States was unimportant. Taubenfeld was a matrimonial action involving a construction of section 1166 of the Civil Practice Act. The decision in that case lends no support to plaintiff's position here.
Plaintiff argues that, in any event, defendant, by virtue of the fact that it does business in New York, is a resident of the State. The authorities are to the contrary. See Taller & Cooper, Inc. v. Rand, 286 App.Div. 1096, 1097, 145 N.Y.S.2d 557, 559; Remington & Sherman Co. v. Niagara County National Bank, 54 App.Div. 358, 66 N.Y.S. 560; Shepard & Morse Lumber Co. v. Burleigh, 27 App.Div. 99, 101, 50 N.Y.S. 135, 136, and Williams v. A. Hollander & Son, Inc., 249 App.Div. 784, 292 N.Y.S. 228. A foreign corporation cannot be a resident of this State. Its domicile is in the sovereignty where it was incorporated. New York may authorize it to do business within the boundaries of the State, but the corporation does not, by virtue of such authorization or by virtue of its conducting business...
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