My associates have each examined this case with care, and have reached opposite results. Their opinions show exhaustive research, and it seems as though but little can be profitably added upon, either side of the question involved. My examination of the case has led me to the conclusion that the cause was properly disposed of at the circuit, and, that the judgment should be affirmed. I therefore concur in the result reached, by Justice Leabned, and mainly in the reasoning contained in his opinion. Without attempting to discuss at length the question involved, I will proceed briefly to state the conviction which the examination of the case has produced upon my mind. On the 29th day of April, 1863, the legislature passed, aii act entitled “An act establishing and defining the qualifications, duties, and powers of the health officer of the harbor and port of Hew York.” Laws-1863, c. 358. This statute defines with precision the purposes sought to be-accomplished thereby, and prescribes the duties which such statute intended to devolve upon those who were to be appointed to execute the same. It seems quite evident, from its provisions, that the legislature regarded the-duties thus imposed, important, responsible, and local in their nature, and sufficiently onerous to engross the undivided time and attention of the officials who should undertake to discharge such duties. Section 54 of such act provides-as follows: “Sec. 54. The governor shall nominate, and by and with the advice- and consent of the senate, appoint, three discreet persons, citizens of this state, who shall be residents of the metropolitan police district, as commissioners of quarantine, for the purposes of this act, who shall hold their offices for three years, and until their successors shall be appointed and qualified. He-shall every three years thereafter, and as often as vacancies shall occur by reason of death, resignation, insanity, or removal from the said district, appoint, by and w-ith the consent of the senate, citizens as aforesaid, who shall reside-in said district, to fill the places of those commissioners whose terms shall expire or become vacant, and the persons so appointed shall hold their offieesfor three years, and tyitil their successors shall be appointed and qualified.” It is difficult to conceive a more significant and emphatic declaration than that-*375contained in this section in regard to the required place of residence of the persons who should be appointed to act as such commissioners,—“three discreet persons, citizens of the state, who shall be residents of the metropolitan police district.” Why require that they should be residents of such district? We cannot reasonably infer that such provision was inserted in such statute without an adequate motive therefor. We are to seek such motive from the provisions of the statute, the purpose of its enactment, and the nature of the powers and duties created thereby. The duties which the statute devolved upon such commissioners were local in their character, in regard to the place of their performance, and presumably sufficiently burdensome to occupy the time and attention of such officials. It may be reasonably inferred that the law-makers assumed that an actual resident of such district would probably be better informed in regard to the nature of the duties which he would be called upon to perform, and would be likely to discharge the same with greater intelligence, and more undivided attention, than could be expected of a person who did not reside in such district, and whose interests, business, and associations were divided between such district and other portions of the state. In framing such statute, it is to be presumed that the expression, “ who shall be residents of the metropolitan police district,” was employed in its ordinary sense, and was intended so to be understood, and it is not at all probable that the bewildering distinction sought to be drawn between “domicile” and “residence” ever occurred to the minds of the law-makers. The learned justice at the circuit took a practical view of the question, and I think a defensible one, when he held, in substance, that within the contemplation of such statute, the words “residence” and “domicile” were to be regarded as synonymous. The following proposition, which was consistent with such ruling, was submitted to the jury for their determination: “Did the defendant, Thomas 0. Platt, have a legal residence and domicile, on the 29th day of January, 1880, in the metropolitan district?” The submission of such question to the jury was accompanied by instructions which did no injustice to the defendant or his case, so far as I am able to discover. It seems to me that the entire ease, upon the merits, was substantially reduced to one question of fact, viz., the question of residence, and that such question was fairly submitted to the jury, and their finding thereon, in view of the evidence at the trial, cannot be regarded as unsupported by competent evidence, nor do I think the evidence preponderates so decidedly in favor of the defendant’s case as to call upon this court to set the verdict aside, or to reverse the judgment upon that ground. The evidence shows that the defendant retained his position as president of a bank at Owego; that fye continued as a partner of a manufacturing business at the same place. He also claimed the right to vote at Owego, and, being challenged, took the required oath, in which he stated that he was a resident of that place. He made an affidavit, in which he stated that he intended to retain his domicile in Owego. The defendant also claimed the general right to exercise the elective franchise at the same place. More unequivocal and satisfactory evidence in support of residence can hardly be imagined than that furnished by the foregoing acts and declarations of the defendant, and which yield substantial support to the verdict rendered by the jury. Without attempting to discuss at length the question of domicile and residence, I refer to the definition given by Webster in his Unabridged Dictionary of such words. “Domicile” is defined: “1. An abode or mansion; a place of permanent residence, either of an individual or family. 2. {Law.) A residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time. Barrel.” “To establish in a fixed residence, or a residence that constitutes habitancy; to domiciliate. Kent.” “Residence” is defined: “1. The act of residing, abiding, or dwelling in a place for some continuance of time. 2. The place where one resides; an abode or dwelling; a habitation. *3763. Hence the place where anything permanently rests. Syn. Domiciliation, inhabitancy, sojourn, stay, abode, home, dwelling, habitation, domicile, mansion.” In 2 Williams, Ex’rs, (Phil. Ed.) 1368, the author says: “A man’s domicile is prima facie the place of his residence, but this may be rebutted by showing that such residence is either constrained from the necessity of his affairs or transitory.” Accompanying the text is to be found anote in which the subject is quite fully discussed, with citation of authorities. Hegeman v. Fox, 31 Barb. 476. Justice Emott remarks: “A ‘domicile’ has been described by American authorities as residence at a particular place, with an intention of remaining there an unlimited time. *. * * There must be both the fact of abode and the intention of remaining indefinitely, to constitute a domicile. Both must therefore be proved.” It seems quite apparent that the subject is involved in a net-work of speculation and ingenious theories, which, in my judgment, are foreign to the purpose, nature, and policy of the statute under consideration. I apprehend that it will be found, upon examination, that whenever the term “domicile” has been used in contradistinction to “residence,” that the circumstances under which the term has been thus employed have been extraordinary and exceptional. Considering, therefore, the nature and requirements of said statute, the definitions which have been given to the words “residence” and “domicile,” and construing such statute according to the ordinary and fair import of the language employed in framing it, I am persuaded that the learned justice, intelligently and properly disposed of the question at the circuit by ruling as he did, and in submitting the question to the jury in the form adopted by him. The legislature possessed the power to enact such statute, and to prescribe Ihe terms and conditions upon which official position could be accepted under the same, and it may be assumed that the defendant accepted the appointment voluntarily, and with a full knowledge of the requirements of such statute. If such statute should be regarded too restrictive in regard to the place of residence required of the person desiring-to hold office under the same, the legislature, and not the court, is to provide the remedy.
In regard to the retention of the juror Clowrey, while his examination did not disclose a great degree of intelligence, especially in regard to the political history of the state, yet he may have possessed capacity sufficient to have en7 abled him to exercise sound judgment in regard to the question upon which he was called upon to pass. He was plied with questions which were calculated to perplex and embarrass him, and his surroundings were not such as to produce composure, and to enable him with facility to exercise his faculties. It was peculiarly the province of the trial court to pass upon the competence of the juror, based upon his appearance and examination, and there is not, I think, in the case, evidence of an abuse of judicial discretion which calls for a reversal of the judgment upon that ground. Hor was fatal error committed by overruling the defendant’s peremptory challenge of the juror Carroll. Regarding the practice established by the court at the trial# in regard to impaneling the jury, and the course pursued by the respective counsel in reference thereto, and bearing in mind that this was the trial of a civil, and not a criminal, action, I am convinced that', under all the circumstances, it became a matter of discretion with the court whether to allow or to reject such challenge. People v. Carpenter, 102 N. Y. 239, 6 N. E. Rep. 584. Certainly the rule in this respect should be enforced with less rigor in a civil than in a criminal*action. The judgment should be affirmed, with costs.