494
.:: ." ..} ),
REPORTER.
was BoplaceCi Cilnnot" in Jtaelf. in the .absence of· other be sutpcientto warraJiftthe inference of negligence. It is in this condition that ·theeviden<le.Ieavesit. Undex BU'ch circumstances it is the duty of thecoul·t peremptorily toinstrul,lt tbf;l jury that there can be no' recovery, and:tbat they must find for, defendant. : I need:not, I trust, say, that the unfortunate·,plaintiff bas my sympathy,as a man; but oQurts, in the determination oftb.e rights of parties,. are governed by the settled rules of law; not by the impulses of the heart. NOTE BY THE COURT. I am largely inMbtE!ll for the authorities cited in this decision.tothA excellent the Jury," contributed to the profession D., Thompson.
'"PENFIli:LD,t1. OSEElAPEAKE,
O. & S. ,W. R. Co.l
«( azrou"
Oourt, lD., ,pl;:New York. December 28, 1885.) AMOUNTS To.
I.
If SAME-STATEMENT ,J'.'
, Mere' intention to: changeona's residence does not affect that change. Coupled with such an intention.' there must be acts ,done, and one act must be that of living for some ,period ofthne in the place of intenqed residence, OF C A S E . , ' : . '. "
'In AUgust, 1883. plaintiff. a resideiit of. St. Louis,formed the intention of Itt.kingUP his residence in Brpok1yn"New York. In pursuance of .that iutento Brooklyn in August; andbiswife, upon " tion, he sent his wife anQ " 'arriving there, hired a house;,'in WhiCh she and her children thereafter lived. ",Plaintiff himself came to Brookly:n'inJanuaryof the next year.. ' Held, that F':·' On November 30, 1883, he h¢ not acquired a residence in New York. 8. SAME-LIMITATION OF 890, CODE CIVIL ,PBOC. N, Y.-TENNESSEE STATUTES. '
, ....:On the trial, a motion to directts'VerdiCt for defendant was granted on the . ground that plaintiff was a ,resident .of Tennessee, and that this action was , barred by section 890 of the'NewYorJ,{ Code of Civil Procedure, by virtue Of 'which the laws· of TenneS5ee -limiting the time to COmmence an action like · \.' i .', .thismuSt eOntJ:Ol. It wall admitted that the laws of provided that · like. action tor personal injuries must "e comme!1ced withi.n one year from . the time said action accrues:' 80 that the plaintiff lost his right of action on ,'( 'November,BO·.1888, unless previaus to that date he became-a. resident of New . York, and a motion for a new trial 011 the ground that he, had before that , I ' . date acquired .
':At
'Motion for new'triitl. ·Rufus M.. WilliarM, for' plaintiff." Oharles H. ('Pweed, for defendant: : The questiort'i1pon which the tnotion mlide at the trial ';;! (-';,
"; 'BENl\)DICT':J.
ant
to direct a' verdict· fot the'defendant 'Was decided in favor Of the defendtWas whether' the plainnff'e' Cause of actioD; being for an injury re-.
PENFIE;LD V.CHElh\PEAKE, O. &: S. W. R. CO.
ceived while in the defendant's cars on the thirtieth of November, 1882, was barred by section 390 of'the New York Code. of Procedure. The defendant is a resident in and a citizen of Tennessee, (Muller v. DOW8, 94 U. S. 444,) and by virtue of seCtion 390 of thEiNew York Code of Civil Procedure the statute of Tennessee limiting the time to commence an action like this must control. .. By that the plaintiff.lost his right ofa.ction on November 30, 1883, unless previous to that date he became a resident of the state of New York. The' undisputed facts proved.'\Verethat prio):,to August, 1883, the plaintiff resided in St. Louis. ' In August, 1883" he formed the intention to take up hinesidence in Brooklyn, New York. In pursuance of that intention, in August, 1883, he sent his wife and children to Brooklyn, and, upon arriving there, his wife hired a house, in which she1l.nd her children thereafter lived. The plaintiff himself,. however, Jlid ,not come to Brooklyn till January of the ne:l\:t year. Upon this prOQ{,'.the question arises whether the fact that the plaintiff, prior to November 30th, formedr!the intention to change his residence ,to :New'York,. and the,further fact that he hall gone so· far in carrying that intention into effect as taBend ,hili! wife aDd children to New York to live,coupled'with the,fad that he-, himself did not come to New York until January,,1884, were suffieienttogive him a residence in New York prior to November 30, 1883. I lLrnof the opinion that mere-intention to change his residen,ce does 'not affect that change, buHhat, cbupled with such"an intention, there must be acts done, and that one actml1st ,be that of living for some period of time in the place of intended residence. 'Residenee involvespersonalJpl'esence. 2 Bouv. Law Diet. 582. , The' iaetthat, the plaintiff's family lived ,in New. York pdor :tpSov:ember30, 1883,didnotmakehim a resident of New York. Aman niay hav-e his nome or domicile in this state, and ·be at the same tiJDe a resident ofanother. Oily of New York, v. Gen6t, 63 N. Y. 646. "Change of mind may lead to a changeof'residence, but cannot with. any' prQprietybe deemed such ofitself." Pr08t v. Brisbin, 19:Wend. 14. .To the fu take up the new residence, must, in my opinion, be added living in the new place for some period of time, Idonot say how' long.; ·Here the plaintiff did not follow his wife to the s.tate· of New' York until January, 1884. Up to that time,although he sent his wire'toNew' York in August, 1883, it was optional to him· to abandon his intatl,on without affecting his residence. If" ·instead 'of coming to New York in January, 1884, he had, under a change of intention,recalled his wife to' St. Louis,iit would scarcely be argued, I should .suppOlie, that he had lost his residence in St. Louis by reason of what his wifeimd childrenhaddone,inNew York. Under such a state offacts, i'twould doubtless be held that the fact that hehimselfcontinued to live iri lSt<.. Louis was· sufficient to prevent a 1088 of. residence there.. If so, the fact that he did not come to New York until Janunry., 1884, cornpels decision that he had. not acquired· aresidenee in New Yotk on November 30,1888... The motion fora andl judgment mtistbe enterea 00 the ver<lict.·' .
FEDERAL REPORTER·.
LEWIS,
Jr.,
l1:'N':fuW ENGLAND FIRE
INs. Co. FEJIl-SIHPLllI .
«(ftrouitQourt.p: :lNStmANClll....,. POLICY .. -
December 29, 1886.) SOLE,
UNOONDITIONAL NOT PASSED.
Appl'icy-holder Who holds the property insured under a contract for its sale and conveyance to him by the owner in fee-simple by deed of quitclaim; on payment of the purchase money named therein, and who has fully paid the purcl1ase m(),ney, but has .not yet, received the deed, is the sole,uncoilditional, and fee-simple owner of the prOperty, within the meaning of the usual Con'dition.in insurance' policies,.rendering the policy void in case the assured is not Il;1ld uncpnditiqpal owner of the property insured, and owns it in at law.
At Law." WilliamG. 'Shaw, for plaihtiff. Joo, a. Bakerifor defendant·. ,
:'
This iean action on afire insurance policy in which the defendant, on various conditions,' insured. the plaintiff against loss by' fire· or IiglHning on his, steamSRW and stave mill. The policy was to beeomevoid'if, among othe:dbings, the assured was not the sole and unconditional owner ·of the' property, or if any building ·intended to be insured stood/on' ground not; owned in fee-simple by the assured, or if the interest of the l1ssured was not truly stated in the policy, unless consent in writing' should be indorsed by the company thereon.. The defendant has, by plea, 'set out these conditions, and alleged, in substance, that theplaintiff;had no title or right to the property insured, or the ground 'on which it stood, except by virtue ofacontract in writing.between him and the owner of the property in .fee-simple, signed' by both, by which the owner agreed to. sell,. transfer, and convey by deed of quitc1aiut to the plaintiff all the property in consideration of the full and completepayrnent of three notes of the plaintiff described, possession of the property, and full payment of the notes by the plaintiff, with failure to deliver the deed, without fault or neglect of the plaiutiff. To this plea the plaintiff' has demurred, and the cause has now been heard on this demurrer. The questicin raised by this demurrer is whether, on thesefacts,theplaintiff became sole and unconditional owner of the property irisured,'andthe ,owner in fee-simple of the landt. If he did not, as there was no consent in writing on the policy, it was by its terms void·. ACbording to theseallegations,the plaintiff had bought the property, including the land, of the owner in for it, and got it. There was no condition about the manner of his acquiring it, by which he ('ould: ,be disturbed in.hisipossession and enjoyment Mit. No one .is shown to have any color of claim whatever .but the holder of the pri01'legaVtitle; and hahad left in him the bare record ,title without ownarship.' In equity theplaintiffcQuld successfully resist any attempt on his.,part,·bylegaltproeeemngs or entry, to· deprive. the plaintiff of the property or land, or of their 'possession. The plaintiff'so had and held WHl1:EY,ER,
J.