Rawstorne v. Maguire

Townley, J.

Defendant, appellant, appears specially and moves to set aside the service of summons on the ground that he is not a resident of New York and is consequently not subject to service by substitution under section 230 of the Civil Practice Act. Section 230 authorizes an order for substituted service against a person “ residing within the State.” The question is whether defendant *2at the time he was served was “ residing ” in New York within the meaning of this section.

The defendant occupied a room at the Vanderbilt Hotel in New York city, whenever he happened to be in New York, from May 7, 1932, to August 24, 1933. At first he registered from his home in Chicago. During this period he moved to Fredericksburg, Va., and registered from-there. The defendant’s home in Virginia consisted of a dwelling house and a large estate on Poplar road, Stafford county. The defendant lives there with his wife, daughters, mother and mother-in-law. The defendant owns no real estate or any other property in New York and he actually has no place of residence other than the Virginia home

Admittedly for a year and four months the defendant was frequently in New York. Most of the visits were from two to ten days in duration. The longest periods in 1933 that he stayed at the hotel at one time was for thirteen days in February and fifteen days in June. In 1932 he spent more time in New York. Aside from numerous short stays he was here for thirty consecutive days in June, twenty-five consecutive days in September, eighteen consecutive days in the early part of October, thirty-two consecutive days from the latter part of October to the latter part of November, and twenty-six consecutive days ending December twenty-second. The fist of the visits indicates that the defendant was irregularly in and out of the city as a visitor. The room clerk of the hotel states in his affidavit that he made an arrangement with the defendant whereby the defendant could keep his room and leave his baggage there and be charged only for the time that he was at the hotel. “ It was the understanding that if Mr. Maguire’s room should be needed for other guests at a time when he was away the hotel could use it.” It thus appears that the arrangement was for the benefit of the hotel to retain defendant’s casual patronage. During the period at which it is claimed defendant was a resident of New York, there was a decision in the United States District Court, Southern District of New York, holding that on September 7, 1932, defendant was a citizen of Virginia.

The date of the summons involved is July 8, 1933. After July 4, 1933, and before the order was signed, defendant was in New York on only one occasion, the twenty-first, twenty-second and twenty-third of August. On the twenty-fourth of August defendant left the hotel, gave up his room and took bis baggage with him. Any later visits in September were purely those .of a transient. The order for substituted service is dated August 3Ó, 1933. It is, therefore, clear that whatever might have been the status of the defendant during the period in which he was holding his hotel room con*3tinuously, he had changed his status completely, and so far as appears, in the utmost good faith, on August 24,1933. Accordingly, when the plaintiff obtained the order of Special Term for substituted service, defendant was certainly not in residence in this State.

The process of any State has no extraterritorial jurisdiction over persons beyond its boundaries. To maintain an action against a resident by substituted service, the service of process by substitution must be supported upon the ground that the person is domiciled in the State, the court of which has issued the order. (Huntley v. Baker, 33 Hun, 578.) In Leighty v. Tichenor (173 App. Div. 228) a Missouri judgment secured by substituted service was held invalid by this court because the defendant was not domiciled in Missouri when served with process by substituted service under a similar statute. The court said: “ It appears to us from a consideration of the statutes that the intent of the statute was to prescribe a method of service on domiciled and not merely temporary residents, and that, therefore, by the terms of the statute, as well as by the principles of the common law, the service would be ineffective if defendant was not at the time domiciled in Missouri, even though he happened to have a temporary place of abode ’ in the State.”

Since the decision in Pennoyer v. Neff (95 U. S. 714) the Supreme Court of the United States has uniformly held that process of a State may not be served upon one not a citizen of that State except within the State.

“ The established general rule is that any personal judgment which a State court may render against one who did not voluntarily submit to its jurisdiction, and who is not a citizen of the State, nor served with process within its borders, no matter what the mode of service, is void, because the court had no jurisdiction over his person. Pennoyer v. Neff, supra; Freeman on Judgments, 4th ed., § 120a; Black on Judgments, 2d ed., §§ 904 and 905.” (New York Life Ins. Co. v. Dunlevy, 241 U. S. 518, 522.)

It is unnecessary to discuss whether there is a difference between the term “ citizenship ” as used by the Supreme Court of the United States and “ residence ” or “ domicile ” as defined in the decision of this State cited above. In almost all cases it will be found that one who has a domicile in a State will also be a citizen of that State or at least eligible for citizenship.

Assuming that for most questions which might arise under section 230 of the Civil Practice Act the test of domicile will be sufficient, the following definition of “ domicile ” by the Supreme Court of the United States is pertinent: “Domicile has been thus defined: ‘ A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unhmited *4time.’ * * * By the term domicile, in its ordinary acceptation, is meant the place where a person lives and has his home. * * * Where a change of domicile is alleged the burden of proving it rests upon the person making the allegation. To constitute the new domicile two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient.” (Mitchell v. United States, 88 U. S. [21 Wall.] 350.)

The facts of the case before us show no evidence whatever of an intent to become domiciled in this State within the meaning of this definition.

The order should be reversed, with twenty dollars costs and disbursements, and the motion granted, with ten dollars costs.

Finch, P. J., and O’Malley. J., concur; Martin and Glennon, JJ., dissent and vote for affirmance.