In these five cases attachments were issued out of this court against the property of the defendant Wilson as a non-resident; they were dated respectively, April the 13th, May the 23d, June the 4th, and July the 1st, in the year 1858. A motion was made at the special term to discharge these attachments, and on the 12th day of October, 1858, an order was entered denying the motion. From that order this appeal is taken.
The question is, whether the defendant was, or was not a resident of this State at the time of the attachments:
The defendant has a wife and family : such person is a resident of the place in which he has fixed his abode with the intention of remaining in it as his home, without any present purpose of removing therefrom.
Temporary sojourn for business, health, or pleasure does not constitute residence.
The animus and the actum are both important in the consideration of this subject.
Any person has a right to change his residence, be his motives what they may; and when the anirrms et actum concur, that moment the residence is fixed or abandoned, and the legal rights and disabilities attach accordingly.
A resident of Mew York, indignant at the high taxation of his property, determines to remove to Morwalk, in the State of Connecticut to avoid this taxation; he takes his family to Morwalk and hires rooms at the village tavern which they occupy; and though he looks after his affairs in the city during the week, he spends every Sunday with his family, and gives out that Morwalk is his home, that he is no longer a resident of Mew York, and avows that he has changed his residence for the sole purpose of avoiding taxation. An attachment issues against him as a non-resident. On motion to discharge it, he shows that he is engaged in business in this city, where process could be served upon him during every week-day ; that he is a lawyer or merchant in regular employment here, and changed the home of his family only to avoid taxation. I apprehend the motion would *112be denied. Thus finding that escape from taxation has subjected him to the annoyance of attachments, he resolves to change his residence again, and removes his family from the village tavern to the St. Nicholas Hotel. His real and avowed purpose in the former change was to escape taxation,—in the latter, to avoid attachments; both objects are legitimate and within the sphere df his rights. In each case the animus et aetum concur, and forthwith subject him to all the legal consequences of this change of residence.
If these views are correct, this case will be disposed of so soon as we ascertain whether the defendant changed his residence from Horwalk to Hew York prior to the attachments; and whether if he did make such change of residence, he had abandoned the same before the attachments issued.
Residence being once established in any given place, it is incumbent upon the party seeking to avail himself of a change of residence from that place, to prove such change.
In this case the defendant’s residence from 1840 to 1856 being conceded to have been in Horwalk, the burden was thrown upon him to prove a change to Hew York; and if that change was conclusively proved, it threw the burden upon the plaintiffs to show that the residence of the defendant was changed back again to Horwalk.
First. Is the evidence satisfactory that the defendant changed his residence from Horwalk to Hew York in the autumn of 185Y ?
The defendant. Tmows more of his own acts and intentions than any one else can possibly know; and by well-settled rules of law, his sworn statements are to be taken as true, unless contradicted by other witnesses, disproved by attendant circumstances, or rendered incredible by some legitimate evidence.
[Here the contents of the affidavits given above were stated.]
Aside from expressions of opinion on the defendant’s part, these affidavits present the case of a merchant who had retired from business in the city, of Hew York, who had for some years prior to 1856 resided upon a farm in the village of Horwalk, and who resolved in the year 1856 to become a permanent resident of this city. In that year he conveyed the farm and all his property in Horwalk to his son Oliver, who then attained his majority, and who has held the same exclusively as his own *113from that time to this. The defendant thereupon became a permanent boarder at the Astor House, engaged in active business here, leaving his wife and minor child at Horwalk, with liis- son Oliver, visiting them every Saturday, and returning on the Mondays following, intending in this way to change his legal residence to Hew York, and supposing that he had done so.
In the fall of 1857 his commercial house in this city, where all his business was done, and in which all his fortunes were intrusted, became embarrassed, and it was suggested to him by his confidential clerk that some question might arise as to his legal residence, growing out of the absence of his family, at which suggestion he expressed the confident declaration that he was a resident of this State. But to avoid the possibility of any difficulty on that subject, he engaged for himself and family apartments at the St. Hicholas Hotel, and with his family took possession of the same on the 12th day of October, 1857, and there remained until the 22d day of January, 1858, when his child became ill, and the two physicians who attended him advised that the child should be taken to the country for the benefit of its health. Following this medical advice, the wife of the defendant, to recover the child’s health (and for no other reason), went back to Horwalk to the house of her son Oliver.
A few days afterwards the defendant went’ to see his child, intending the visit to be but temporary; while there he became ill, and was detained by illness until the latter part of May of the same year,—entertaining no other idea than that he was a resident of Hew York, where he had gone permanently to reside, where he had voted at the Hovember election for mayor, and having no intention to abandon that residence.
In March, 1858, the defendant’s wife and child returned to the St. Hicholas Hotel, and resumed the apartments which they had before occupied, the defendant promising and expecting to follow them in a few days, which illness alone prevented., Personal property of some kind had been left at the hotel by the defendant, from the intent and design of resuming possession of the apartments after the contemplated return from their visit to Horwalk.
The defendant returned to the city in May, and has remained here ever since, except only occasional temporary absence for health or pleasure, and having in good faith supposed himself a *114resident of this city, where he had made various efforts to obtain property wherein to have himself and his family permanently» established.
This I conceive to be a fair statement of the defendant’s case, as presented by his proofs, supposing them to stand alone, unimpeached and uncontradicted. And if upon this evidence only, we were sitting in Connecticut under precisely similar attachment laws, and a motion were made to discharge this attachment on the ground that the defendant was a resident of Nor-walk, and not of New York, I think we should not hesitate to decide that he was a non-resident of Norwalk, and deny the motion.
Next. Let us see in what manner and to what extent the defendant’s case is weakened by the plaintiffs’ evidence.
The plaintiffs have introduced a large number of affidavits: some made by clerks of the Astor House and St. Nicholas Hotel, and many by residents of Norwalk. These witnesses confirm the defendant’s statement relating to the time when he was at the hotel, and when he and his family were at Norwalk. They show that his conveyance to his son Oliver is true ; they show that he voted in Norwalk in the fall of 1856, but at no time since; that he was on the poll-tax list in 1857 and 1858, but not that he ever paid any tax after 1856; that he was regarded as a resident of Norwalk by the witnesses and others ; but no one of them suggests that the defendant, after 1856—when he conveyed to his son—ever said that he was, or that he considered himself, a resident of Norwalk. These witnesses, appearing to have had no personal acquaintance with Hr. Wilson, say that they considered him a resident; while Dr. Gregory, the resident physician of the village, and whose opportunities of knowledge seem to have been good, states,—“ that he believed and looked upon the defendant as being a citizen and resident of New York for the last three years, or since he sold and conveyed his homestead property in Norwalk to his son ; that said Wilson was not in the habit of attending town-meetings or elections in Connecticut after he conveyed his said property to his son.”
The merchant, lawyer, banker, or other citizen of New York, who, for health, pleasure, or business, goes to Kentucky or to Europe in the spring, intending to return in the fall, does not thereby lose his residence and subject his property to attachment; *115nor does it matter whether he takes any part of, or his entire family with him, the fact being ascertained that his absence is intended to be but tempora/ry. Nor is the case altered by a misfortune of illness, which may detain him much longer than he at first anticipated.
I quite agree with the legal views expressed by the learned judge below, and cite his able opinion, as containing a true exposition of the law. But in examining the evidence of this case, I suspect he has given more weight to the defendant’s motive in . removal to New York than it justly deserves. As before remarked, the motive of a man, engaged in business here, to return to the city to avoid attachments, is just as legitimate as his motive in going to the country to escape taxation ; neither are of any consequence, except so far as they throw light upon the bonafides of the intention to change residence.
The defendant’s affidavit is criticised by the plaintiffs’ counsel as defective in particulars, and that consideration was much pressed upon the court.
The natural expression of conscious truth is straightforward, positive, and to the point. Heretofore, extreme formalities and particularities in the affairs of men have been regarded as indicia of fraud.
One man says to another—“I have changed my residence from Norwalk to New York ; I am now with my family at the St. Nicholas Hotel; I intend to get a house of my own wherein to remain permanently; I have made various efforts to purchase one, but have not yet succeeded.” It strikes me such would be a very natural way of asserting a simple truth. But if the person should give every minute particular; tell with whom he had talked, what he said, when he said it, where he said it, what property he had seen, with whom he had negotiated, when he was there, at whose office, where the office was, and what the broker said, &c., that very particularity would create distrust—■ it would be unusual and unnatural, and it is not the way of honest truth.
I have not forgotten, that where affidavits are long, counsel reject very many of the particulars which the client states, under the apprehension that the main facts will be. smothered by a crowd of things of lesser importance; and that thus the court will be in danger of overlooking the substantial points of the *116case. My intercourse with men has not led me to believe that .an eminent merchant-will perjure himself for the purpose of making equal distributions of his estate among all his creditors, nor that respectable counsel will write out an affidavit so strong and positive in its terms, and so unmistakably calculated to mislead the court, unless he believed from all the statements of his • client, that the affidavit embodied the true meaning of what the client said.
That a boy eight years old, brought up from the country in October, and shut up in the St. Nicholas Hotel until the 22d day of January following, should get sick, and that the physicians should advise a change to the country for restoration, is not strange; and that the father, overwhelmed by misfortunes, should send the boy to the home of his other son seems natural, and not necessarily to indicate any change of purpose as to residence in New York.
At the hearing, I considered this case with much care, and with a single desire to get at the truth; and a re-examination of all the testimony has left a firm conviction upon my mind, that the clear, positive, and unequivocal statements of the defendant, under solemn oath, ought not to be discredited by any evidence which this case presents.
All the other justices concurred in the opinion of Mr. Justice Woodruff.
Order affirmed, with costs.