The parties to this action were married outside the State of New York on November 12, 1929; they came to New York and resided here from November 16, 1929, until July, 1931; they then went to California in July, 1931, and resided there until September, 1932, when they separated, the husband remaining in California and his wife coming to New York. Since that date the parties have lived separate and apart. The husband has at all times since July, 1931, remained a resident of the State of California, and was a resident of that State at the time of the commencement of this action and is now a resident thereof. He came to New York for a visit on April 18, 1934, and was served with the summons and complaint in this action.
The sole question for determination is whether under subdivision 3 of section 1162 of the Civil Practice Act this court has jurisdiction of the action. That subdivision reads:
*458“3. Where the parties, having been married without the state, have become residents of the state, and have continued to be residents thereof at least one year; and the plaintiff is such a resident when the action is commenced.”
The appellant contends that his wife, although she resided here with him for more than a year, was not a resident for more than one year immediately preceding the commencement of this action, and, therefore, may not bring this action in New York under the above section. The appellant relies upon Elwell v. Elwell (70 Misc. 61), where it was said: “ I am of opinion that subdivision 3 of section 1763 was not intended to cover the case of parties married without the State who at some time had maintained a residence in this State for at least one year, but who had voluntarily given up their New York domicile and established a new domicile in a foreign State, where the acts complained of occurred and where the defendant has continued his domicile up to the time of the commencement of the action.”
The respondent contends that under subdivision 3 of section 1162 the sole condition of the court’s jurisdiction is a continuous residence of the parties for one year in this State, and that the plaintiff resides therein when the action is commenced. Reliance is placed upon the case of Bierstadt v. Bierstadt (29 App. Div. 210) for that proposition. The court there held that where a marriage is solemnized out of the State, “it is required, in order to maintain an action against a non-resident defendant, that both parties should, at some time, have become and remained inhabitants for the period of one year.”
This court in Barber v. Barber (137 App. Div. 665) held to the same effect, and said: “ The plaintiff brings this action to obtain a separation from the defendant on allegations of desertion and a failure to provide for her support. The complaint sets forth the marriage of the parties on December 17, 1895, at the city of Washington, in the District of Columbia; that plaintiff and defendant have since their said marriage become residents of this State and so remained for one year from on or about the 1st day of April, 1898; and that the plaintiff at the time of the commencement of this action was and still is a resident of this State. This allegation brought the plaintiff within the provisions of section 1763, subdivision 3, of the Code of Civil Procedure, and made the action for separation one which could be maintained in this State.”
The Special Term in denying the defendant’s motion to dismiss the complaint said: “ Motion for dismissal for lack of jurisdiction upon ground that subdivision 3, section 1162, of Civil Practice Act, as construed in Elwell v. Elwell (70 Misc. 61), requires that *459residence of one year continue up to time of separation of parties. It is my opinion that jurisdiction is acquired where the marriage occurs out of the State and both parties at some time have become and remained residents of this State for the period of one year and the plaintiff at the time of the action is a resident. (Bierstadt v. Bierstadt, 29 App. Div. 210; Barber v. Barber, 137 id. 665.) Motion denied, with ten dollars costs.”
The express wording of the statute appears to warrant that conclusion. The Civil Practice Act, section 1162, subdivision 3, provides that the action may be maintained where (1) the parties having been married without the State have become residents of the State; (2) where they have continued to be residents thereof at least for one year, and (3) the plaintiff is such a resident when the action is commenced.
If the Legislature intended that both parties must be residents of the State for the year immediately preceding the commencement of the action, it would not have inserted a provision to the effect that the plaintiff only must be a resident of the State at the time the action is commenced.
The statute says that where the parties have been residents for at least one year and the plaintiff is a resident when the action is commenced, it is sufficient. It does not say that the plaintiff must have been a resident continuously from the beginning of the year, nor does it require both parties to be residents at the time the action is commenced or at any particular time.
It seems clear, therefore, that but one interpretation should be given to the statute and that is the one followed by the Special Term.
We are of opinion that the requirements of the third subdivision of section 1162 have been complied with and that the order should be affirmed, with twenty dollars costs and disbursements.
Finch, P. J., and TJntermyer, J., concur; Merrell and O’Malley, JJ., dissent and vote to reverse and grant the motion.