(dissenting).
I dissent because I think the State Department is entitled to a clear and explicit statement of the rule of law governing these expatriation cases, based on alleged continuous residence for three years in the territory of the foreign state of which the citizen “was formerly a national or in which the place of his birth is situated.”
While appellee was physically at the Hotel Delmonico in New York City from December 29, 1948, to March 4,'1949, the Government proved that by January 14 he had booked return passage to Italy, and that on January 25, he applied for renewal of his passport so that he might return to Italy. “The inference to be drawn from this,” the trial judge found, “is that plaintiff intended to hasten back to Italy and did not intend to tarry and reside here.” [138 F.Supp. 798.] Yet he ruled that appellee did nevertheless “reside” here for that period as a matter of law, since “what plaintiff intended is immaterial,” citing Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, which merely holds that intent in the sense that it is a factor in determining domicile has no relevancy. It is clear to me that “the principal dwelling place of a person” or his “place of general abode” necessarily involves a probing of his intention; and the cases so hold. United States v. Karahalias, 2 Cir., 205 F.2d 331; Jo-sephberg v. Markham, 2 Cir., 152 F.2d 644; Mendelsohn v. Dulles, D.C.Cir., 207 F.2d 37. Appellee’s intention to make the Hotel Delmonico his “place of general abode” is of crucial significance in determining the effect of a two-months sojourn in this type of case; only his intent not to expatriate himself and his intent as to his “permanent residence” are immaterial.
The trial judge, having ruled that ap-pellee’s intention was immaterial, went on to say that mere physical presence is not determinative of “residence.” But these words convey no meaning to me. If intent is immaterial, what is left but physical presence to determine “residence”? Thus, although the trial judge purported to adopt a rule that would permit the Government to rebut the “inference” that “residence" accompanies physical presence, it is clear that no such rebuttal is possible. In other words, despite the language used, the holding of the trial judge is that “residence” is synonymous with physical presence for a two-months period. This is not the law, and my brothers seem to agree that it is not.
Accordingly, I would remand the case so that upon a new trial there may be a finding on the basic issue of appellee’s intent. For I can perceive in the record no finding of fact that appellee’s intent was or was not to shift his place of general abode from his wife’s villa in Italy to the Hotel Delmonico in New York. Indeed, as noted above, the trial judge stated that the proper inference from the undisputed facts was that it was *683appellee’s intent not to establish a residence in New York. The record and opinion below will be searched in vain for even the slightest indication of a contrary finding. This being so, I am puzzled by the use of the expression “clearly erroneous” in my brother Smith’s opinion.
The case having been decided on an erroneous theory of law, the discussion of the burden of proof by the court below has no significance whatever.
Unless we are to take over the functions of the trial judges, which as a court of review we should not do, it seems to me that the case must be remanded.
While the record does not disclose contradictions between the testimony of various witnesses, and the proofs adduced would warrant a finding that ap-pellee intended the Hotel Delmonico as his “principal dwelling place” during his sojourn in New York, I think it perfectly plain that the proofs would sustain a contrary finding. The task of deciding such matters has not been assigned to us.