Phelps v. New York, New Haven & Hartford Railroad

O’Brien, J.: The defendant has waived all questions that might he raised upon the appeal from the judgment and the order, except the claim that the plaintiff cannot maintain this action because it arose at Fair-field, in the State of Connecticut, and the defendant is a. foreign corporation, organized under the laws of the State of Connecticut, and the plaintiff himself is a resident of that State. The sole question, therefore, is, whether it appears by a preponderance of evidence that the plaintiff, at the time of the commencement of the action, on December 26, 1894, was a resident of the State of Hew York. The defendant claims that he was a resident of the State of Connecticut within the meaning of section 1180 of the Code of Civil Procedure, which defines the cases in which the courts of this State may entertain actions against foreign corporations. Upon this subject the plaintiff testified that, at the time of the accident, and when the action was brought, and at the time of the trial, he resided in Hew York; that when he received the injuries he was twenty-three years of age, and at that time had been in the railroad business as a brakemail for nine or ten years, commencing at Saybrook Point, Connecticut, where he worked about a year and a half, and, after working for á time on a train leaving Saybrook and. running through to Hartford, he left that road and went to work on a train running on the Héw York division of the defendant’s road; that he worked for over a year on that train, and then went on what was known as the 'Pier 50 train, upon which he had been working, according to his statement, about two months when he was injured. ' Other witnesses state that he had been working as much as seven months on the Pier 50 train. He had thus been running on a train from Connecticut into Hew York for a period variously estimated by .the witnesses as from fourteen to nineteen months. The plaintiff was born in Saybrook, where his family resided, and still reside. He had only been to Hew York to visit before he fan on the Hew York division, but he stated that he intended and claimed Hew York to be his residence, and that he had such residence at the time of the accident, September [394] 16, 1893. When asked, where lie lived, he said at the corner of One Hundred and' Twenty-ninth street and Third avenue; but further questioning showed that he;- had no room' there, but only 'took his meals at a restaurant at-that place. When his train was in Hew York over night he- slept in the caboose of the train. He was not a married man and never had been. Since coming to Hew York to-work 'he had. spent no time in Saybrook, :and "had no interest there, and only went there for an occasional visit to his father and mother. who resided there. He further testified that when he came to Hew York to work it was his intention to abandon Saybrook as a residence and take up his residence in Hew York, and that when he testified he' lived in Hew York at the time he was hurt, he meant that he made his home in Hew York, because, he -resided there most of the time; that he-made Sullivan’s restaurant on the corner of One Hundred and Twentyminth street and Third avenue his, regular place for procuring his meals; that he was in Hew York Saturday night and Sunday night, and every other night, except the three nights in the week whén he was required to,be in Hew Haven, and that lie had made up his mind to come to Hew York to live permanently when he first went to. work on the train. Hpon being injured, the plaintiff was. taken to the hospital in Bridgeport, where he remained about six months. ■ Prom- there he went to Saybrook, to his father’s house. In the fall of 1894 he came to Hew York' with the purpose of residing there, and intending to stay there; and while he had no business there, he did not.know but that he-might get somei Dur- . ing this time he rented a room in Forty-second street, and paid for . it. . In the latter part of March, 1895, he returned to Saybrook, where.he remained until about October, 1896. He had-no intention when'-liere to return to Saybrook, but. went back to make a visit, and only made up his mind, to do so a day or so before he started. He states that he did not expect to go- back -there as soon as he finished' his business here, and did not consider .liis permanent home, there, nor call it his home ; that'it was his folks’ home, and lie used to go and see them once in a while ; that during all the time he .was in .Saybrook, he kept a room in Hew York at 405 West Forty-second . street and paid for it; liis sister occupied it, but it. was not her room' and slie held it for him, but did not contribute anything to the pay- ■ ment for it; and that this was the.same room that he occupied when [395] he was in Hew York. Two witnesses residing in Saybrook were produced, who knew the plaintiff, and said he had always resided in Saybrook; and extracts from certain letters were introduced to prove that the plaintiff had spoken of Saybrook as his home. We have thus summarized .substantially all the testimony bearing upon -the question of plaintiff’s residence, which, against the defendant’s exception, the learned trial judge submitted to the jury as a question of fact. At the defendant’s request, the judge charged: “First. If the jury find that Connecticut was the ¡lermanent residence of the plaintiff on Hovember 26th, 1894, then this court is without jurisdiction, and the plaintiff cannot recover. Second. If the plaintiff came to Hew York before the commencement of this action, intending to acquire a residence here for the sole purpose of commencing this action,- and, as soon as this action was completed, to re turn to his home in Saybrook, he. did not acquire a permanent residence which will entitle him to maintain this suit in this court, and the verdict must be for the defendant. Third. In order to acquire such a residence as would entitle him to maintain this suit in this State, it is necessary for him to show that he intended to establish a permanent residence in Hew York city and .to abandon his residence in Saybrook. Fourth. If, when he came to Hew York, lie only had the intention of. leaving his ordinary home temporarily for a particular purpose, he acquired no residence in Hew York such as was necessary to commence this action. Fifth. In order to find that the residence of the plaintiff was in Hew York at the time of the commencement of this action, it is necessary for the jury to find that that place was actually the chief seat of his affairs and interests and that it was his intention that it should remain so.” Although, therefore, the defendant objected to the submission of that question to the jury as one of fact, no exception was taken to the charge upon that subject, as made by the learned trial judge ; and if it was a question of fact, and one which should have been submitted to the jury, their verdict is conclusive. It would serve nb useful purpose to multiply definitions upon the question of residence, as that word is used in the different sections -of the Code, because in every phasedt has been defined and explained by many authorities. (Dupuy v. Wurtz, 53 N. Y. 556; Gundlin v. Hamburg-Am. Packet Co., 28 N. Y. Supp. 572; Prentiss v. Butler, 37 N. [396] Y. St. Repr. 605; Bassett v. Wheeler, 84 N. Y. 466; de Meli v. de Meli, 120 id. 485; Barker v. Cunard Steamship Co., 91 Hun, 495.) Briefly stated; what is essential is. the intent accompanied by the act "of abiding at- some place. With respect' to unmarried .men, such as the plaintiff was, many of whom live at clubs, .hotels and "restaurants, and- who are accustomed to go from place to place, it is often difficult to determine what place is to be regarded as their permanent abode.. The fact that the plaintiff’s sleeping -place- while in New York was a ear -or caboose, while dwelt upon by the -appellant,. cannot be deemed as controlling; because, -if he had occupied a bunk in one of the'defendant’s buildings,-or even a room near the railroad yard, his place of abode would have been- no more fixed or permanent, from a legal standpoint, than if he had occupied a car. . As said in Guier v. O’Daniel (1 Binney [Penn.], 349): “ On a question of domicil, 'the' mode . óf living is not. material, Whether on rent, at lodgings, or' in .the house of a friend. The apparent or avowed intention of'constant residence, not the manner of it, constitutes the domicil.” Taking the fact, therefore, that the plaintiff, from the time he came to New York upon the New York division up to the time of his injury, seldom .went to Saybrook, coupled with his statement that he left .that place when about twenty years of age, and that when he came to New York he made up his mind- to live there permanently, and- that he did-not consider that in October, 1894, Saybrook was his home, the evidence was not so clearly . predon derating against the jplain.tifi’s'testimony.as to the place which. he considered his residence, that the court would have been justified in -determining the question as a matter of law and, on this ground dismissing the complaint. In Barker v. Cunard Steamship Co. (supra), where the question of jurisdiction was raised,, it was held' that -the plaintiff’s residence refers to. the time -when the .action - was begun.. As therein said: “ The' testimony does -not conclusively show that -the plaintiff was not a resident of this State when the action was begun, and the presumption of jurisdiction is not rebutted., . If it can be said that the evidence is capable of different inferences as to the place of residence of the plaintiff, the answer-’ is that. the jury has drawn the inference and. determined the question in his favor. In case the jurisdiction of a court of general jurisdiction turns upon a question [397] of fact, the issue must be determined by the jury.” Our conclusion upon the facts here presented is that the testimony upon the question of plaintiff’s residence was conflicting and -was properly submitted to the jury. We do not discuss the question as to whether the defendant is a foreign corporation, though so far as its capacity to sue and he sued in the courts of this State is concerned, it is to be regarded as a corporation of this State (N. Y., N. H. & H. R. R. Co. v. Welsh, 143 N. Y. 411), preferring as we do to rest our decision upon the ground that, assuming it to he a foreign corporation, if the plaintiff was, as the jury found, a resident of this State, he was entitled to maintain this action. The judgment should, therefore, be affirmed, with costs. Rumsey, Williams and Parker, JJ., concurred; Ingraham, J., concurred in result.