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Court Reviews Case Regarding Jurisdiction Issue


This proceeding was brought by the petitioner under subdivision 1 of section 332 of the Election Law to cancel the enrollment of the respondent as a member of the Democratic party of the county of Kings.

A New York Family Lawyer said that the petition alleges that respondent in a verified affidavit, requested that his enrollment be transferred from the thirty-seventh Election District of the nineteenth Assembly District to the fortieth Election District of the nineteenth Assembly District.

The respondent by lease became the tenant of premises in Kings County for a term of four years, which term has since expired, but the occupancy thereof has continued under the terms of the lease either by automatic renewals of terms of one year or under the emergency rent laws. The family of the respondent apparently at all times since the tenancy began of said premises has remained in occupancy thereof to the present time. It is indicated by the evidence that such family consists of the wife of the respondent and an unmarried son. The respondent is a lawyer engaged in practice in Kings County and, judging from the photograph introduced in evidence of the premises, it would appear that he either enjoys a good practice or is a man of some substance.

In rebuttal the respondent sought to show that he established a domicile at various times by moving some clothes there, a portable typewriter, a small typewriter table and a lamp. The respondent claims he actually lived there with the consent of his wife to whom he has been and is happily married and with the understanding it was done to further his political ambitions. In attempting to describe the premises, his room and stores in the immediate vicinity, the respondent was unable to do so with clarity and precision to the extent that one who lived at such premises as long as he claims should be able to do. The respondent claims he was domiciled with some relatives of his daughter. This is a fact to be given deserving weight with all other facts in this proceeding.

A New York Child Custody Lawyer said that the respondent’s testimony convinced the court of only one matter and that is that he established what is known in political parlance as a voting residence. On the respondent’s testimony alone, judging him as the judge saw and heard him the Court is thus convinced that he was not in fact domiciled at the premises.

A Queens Family Lawyer said the only corroboration of the respondent’s testimony was given by the letter carrier who delivered mail to the premises for the past two years and who claims he delivered mail at such address directed to the respondent. Again seeing and hearing such witness, the Court was impressed that his testimony was too good and was not to be accepted as credible.

The law is clear that a person may select and make his own domicile but such selection must be followed by proper action, motives being immaterial except as they indicate intent but no pretense or deception can be practiced, for the intention must be honest, the action genuine and the evidence to establish both clear and convincing. Residence and domicile have been held to be synonymous under our Election Law and domicile means living in a place with intent to make it a fixed and permanent abode as contrasted with residence which simply requires bodily presence as an inhabitant. To acquire a domicile there must be a present, definite and honest intent to give up the old and take up the new place as a domicile. The question of domicile is one of fact. It is not customary, ordinary or natural for a man in the respondent’s position in life and engaged in the practice of law, apart from family or matrimonial difficulties, of which there is no evidence in this proceeding, to be domiciled separate and apart from his wife and family. All of those things necessary in ordinary life to a man in respondent’s circumstances are not indicated to be present at his claimed address of the premises. Those things which a person does to indicate a change of domicile, such as changing forwarding address, receiving his mail and bills for telephone, gas and electric service, indicating his correct address, as required by law, on automobile registration and automobile operator’s license, are all absent in this proceeding. If, in fact, respondent was a resident of, or domiciled at, his claimed address, his presence thereat would have manifested itself at least to some degree at some times to other people living in or about such claimed address.

A Queens Child Custody Lawyer said the Court found as a fact that respondent was not domiciled at the subject premises but was domiciled at the other residence, that his declared residence in his enrollment in 1949 in the thirty-seventh Election District of the nineteenth Assembly District as a member of the Democratic party was false and made for the purpose of deception and to gain whatever personal advantages he could derive therefrom by registering as an enrolled voter at such address. Having perpetrated a fraud, respondent may not benefit therefrom and as a result thereof seek to change his enrollment from the thirty-seventh Election District of the nineteenth Assembly District to the fortieth Election District of the nineteenth Assembly District.

The evidence justifies the granting of the relief requested in the petition and the commissioners of the board of elections of the city of New York are directed to strike the name of the respondent from its books as an enrolled voter of the Democratic party of the thirty-seventh Election District of the nineteenth Assembly District. Submit order in accordance with foregoing.

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