Opinion
June 6, 1935.
Appeal from the Municipal Court of New York, Borough of Manhattan, Eighth District.
Zichello Catenaccio [ Hamlet O. Catenaccio of counsel], for the appellants.
Joseph T.P. Sullivan [ Lionel M. Mantell of counsel], for the respondent.
The sole question involved herein is whether section 52-a Veh. Traf. of the Vehicle and Traffic Law applies to this defendant, who is a resident of New York city, but absent therefrom for more than thirty days attending college in another State. The section permits service of a summons on residents who remove from the State prior to the commencement of an action against them and who shall have been absent therefrom for more than thirty days continuously, by delivery of the summons to the Secretary of State and by mailing or delivery to defendant outside the State. The language used in both the title and the text of the section indicate it was intended to apply to those who were residents of the State at the time the cause of action accrued, who have since changed their residence to another State. The use of the word "remove" indicates an intention to require more than a temporary absence. In Kurland v. Chernobil ( 260 N.Y. 254) the Court of Appeals said: "Section 52-a must, therefore, be held to operate only prospectively and to relate exclusively to those who as residents use the highways of this State subsequent to the passage of the act and who later become non-residents." Temporary absence at college would not seem to effect a change of residence within the meaning of the section though such absence persisted for more than thirty days during the usual school term.
Order affirmed, with ten dollars costs.
All concur; present, LYDON, CALLAHAN and FRANKENTHALER, JJ.