Chaine v. Wilson.

mainly depends), if it be noticed, that he states that he then "resolved to become a permanent resident of the city of New York," and that he further states that "during the whole and any part of the year 1857, and so much of the year 1858 as has elapsed, he has been and now is a resident of the State of New York."

What then did he do in 1856, which made him a resident of the State of New York? The answer to this question may per haps aid us not only in determining what he means when he swears to residence, and what sort of sojourn in New York he intended by what he calls a resolution to become a permanent resident, and what he understands and means by "permanent residence."

He left his family in Norwalk on the farm, theretofore occupied by them, came to New York on Monday, devoted himself to his business here, sometimes until Wednesday, and then returning to his family, and again returning to New York on Thursday-but usually staying in New York until Saturday, and then returning to his family in Norwalk. While in the city boarding at a hotel as an ordinary guest, and occupying a bedroom only-and this continued until the fall of 1857.

After what has been already said of such a course and habit of life, it is only necessary to add, that this neither in fact nor in law made him a resident of the city of New York. And if we assume that in doing this he did, what he states he resolved to do, we see what he means when he says he resolved to become a "permanent resident" of the city of New York.

In this there is no doubt intimated of Mr. Wilson's sincerity. On the contrary, the more sincere he is, and the more confidently he insists that he was a resident of New York at that time, the more probable it is that his apprehension of the force and meaning of the terms employed in his affidavit is inaccurate, and that if he had explained in detail what he means by "permanent," and, "temporary," "home," and "residence," or rather if he had given us the particulars embraced in those words, instead of testifying in terms, which, if taken in their legal signification, dispose of the whole question upon his mere opinion, it might have appeared that his affidavit is not less inaccurate in other respects, by reason of similar mistakes in his judgment on the subject.

Chaine v. Wilson.

He was then, a resident of Norwalk down to the time of his failure or embarrassment in business in the fall of 1857; and he was then admonished by a friend that he might be deemed a non-resident, and it was best to establish "the ostensible as well as actual character of his residence by unequivocal indications." It is doubtless true, that the motive with which a change of residence is made, is wholly immaterial, if the change be an actual change, with intent permanently to abide in the new location. But in weighing the evidence, and where there is a conflict of testimony and circumstances detracting from the evidence of the alleged change, the motive under which the party is acting, and the purpose he has in view, may properly be regarded in determining what was the actual intent.

The question we are considering is not whether, if he intended. an actual "permanent residence" in New York, and in pursuance of that intent brought his family here; took possession of apartments here as his and their "only home," and occupied them without any intention to return to Norwalk when a temporary purpose was accomplished, that would make him a resident of this city? But the very question is, what was his intent in these respects, and what did he do?

He conveyed his farm and the chattels connected therewith to his son, and when he became embarrassed the deed was placed on record. But that farm has been as open to him and to his family, and has been as freely used as a home to him and them, according to his own affidavit, as it ever was before. Whether his wife's farm is still retained, or whether that is the farm referred to, is left in doubt by the affidavits.

He took rooms in October, 1857, at a hotel in this city, and with his wife and child, occupied them for three months, paying his bills weekly, but then gave up the apartments, and has not since had any permanent apartment in the hotel; nor does it appear, that he was in the city at all afterwards, until after one, if not two, of the attachments were issued which it is moved to discharge.

It is shown that his child was sick; and that, under the advice of his physicians, was a sufficient reason for taking him from the city. So, also, that Mr. Wilson was sick; and that, if he was too ill to be removed, was a very satisfactory reason for his not

Chaine v. Wilson.

But it is not shown that himself might not have

returning until sufficiently recovered. his child continued ill-nor that he returned, if in truth this was his home. Such continued absence would, however, under the circumstances, be far less significant if it were not, that, according to the tenor of his own affidavit, that of Mr. Hendrix, and that of his physician, it is apparent that it was because he had no motive to be here; either because he could not attend to business, or because his firm had suspended payment, and his presence in the city was not deemed so important as it had been on former occasions. And since the month of May, when he has been able to attend to his affairs, he has been merely an occasional transient lodger at the hotel-his family residing at Norwalk.

The indication is not slight, that the purpose under which his family were brought to the hotel, was to continue here only until the embarrassments of his firm had ceased, and with an expectation of their returning to Norwalk, or, if any more protracted stay was contemplated, that the design was abandoned some time before these attachments were issued; and that his subsequent visits to the city were only occasional and for purposes of business, while his actual residence was with his family at Norwalk.

There are other statements in Mr. Wilson's affidavit which tend strongly to support the motion for the discharge of the attachments, and it is doubtless true that if that affidavit is to be taken without qualification, and in the very terms therein employed, it would prevail.

Among the other statements, is one, that his wife and child returned to New York in March, and resumed the apartments they had before occupied. With what intent and purpose did they come? How long did they propose to remain? How long did they in fact remain? His affidavit does not inform us.

He states that when he and his family left in January, some of their personal property was left there. What property? How far did its character indicate an intention to return? His affi. davit is silent on this subject. While another witness states that he gave up his apartments, and neither he nor his family have ever had any permanent apartments there since.

Is it usual for actual residents to have no house nor apart

Chaine v. Wilson.

ments, by a tenure more permanent than to take and occupy from time to time such rooms, as happen at the moment to be vacant at a hotel? Probably we cannot say that it is not, and yet we cannot avoid the feeling of surprise, if it be so.

So, also, he states that it has long been his resolution not to occupy a house in New York, until he owned one, and he has conferred with several of his friends, and made efforts to obtain an eligible property in the city, wherein to have himself and his family permanently established. At what time, during the long period here mentioned, did he make these efforts? Was it before he went to Norwalk to reside? With whom did he confer? What were the efforts which he made? And did he even in fact intend to purchase a house here, and if so, when did he have such an intention?

It would seem strange that, in relation to a fact so important as this on the question of a change of residence, some, at least, of these particulars have not been disclosed.

The review thus given of the affidavit of Mr. Wilson may, perhaps, be deemed minute and critical. But it should be borne in mind that this is the main affidavit upon which the motion is founded-the motion is a very important one to all the parties -the affidavit comes from one who knows all the facts, and some of the facts stated relate to the operations of his own mind, and it is reasonable to expect, under such circumstances, and especially when a severe contest might well be anticipated, a statement less liable to abatement in the particulars above referred to.

We do not think it necessary to give a recital of the details found in the numerous affidavits read in opposition to the motion. They tend to show the habits of Mr. Wilson, not only down to 1857, but since; down to the time when the motion was noticed, bearing on the question of residence, and without apparent change in that respect. The belief of his neighbors and acquaintances in Norwalk founded thereon, or derived from their acquaintance with him.-The efforts made to find him in this city. -The apparently transient character of his lodging at the hotels here, from time to time.-The general reputation at Norwalk induced by his habitual actual presence there, as in former years. -The action of the public officers there based upon all the circumstances. And other particulars of less moment.

Squire v. Young.

On the other hand, Mr. Wilson is corroborated, in some particulars of an opposite tendency.

Without entering into any further detailed discussion of the particulars of these affidavits, it must suffice to say that, upon a careful examination of all the affidavits, we are not satisfied that the conclusion of the Judge, at Special Term, that, as matter of fact, Mr. Wilson was a resident of the State of Connecticut when these attachments were issued, was clearly wrong.

The controversy is rather about facts than about the legal principles involved. As to the meaning of the term residence, or non-residence, in reference to this motion, we think there is no ground for difference.

We are sitting as an appellate tribunal, upon a question of fact arising on conflicting affidavits and doubtful circumstances. We should not reverse an order, unless clearly satisfied that the finding of the Judge was wrong. We incline rather to the opinion that, sitting as jurors and acting under instructions touching the law, such as we deem the law to require, we should come to the same conclusion.

The order should be affirmed.

PIERREPONT, J., dissented: All the other Justices concurred in the opinion of Mr. Justice WOODRUFF.

Order affirmed, with costs.

CHARLES SQUIRE, Jun., v. CHARLES M. YOUNG.

A proceeding instituted under § 292, of the Code, can be terminated as absolutely by the plaintiff's abandonment of it, as by an order of the judge before whom it was commenced.

In this case, the day to which it was last adjourned, either by the judge or by the consent of the parties, was the 9th of July, 1857. On that day the plaintiff neither moved the matter before the judge, nor called his attention to it, nor did he again move in the matter until the following October. On the 16th of December, an order was made, based on the original order (granted on the 11th of March), and on an examination of the debtor, and of a witness had on the 17th and 24th of April, appointing a receiver of the debtor's property.

Held, that the order of the 11th of March, and the proceedings had thereon, must be