Opinion
July Term, 1903.
W. Harry Sefton, for the appellant.
I.J. Beaudrias, for the respondents.
This is a proceeding under the provisions of section 31 of chapter 909 of the Laws of 1896, by Patrick J. McCormack, a student of St. Joseph's Seminary at Dunwoodie, N.Y., to compel the board of registry of the first election district of the seventh ward of the city of Yonkers to enter his name as an elector. The moving papers do not disclose the original residence of the petitioner; they recite that he was born on the 10th day of December, 1880; "that since on or about the 1st day of September, 1899, your petitioner has resided at St. Joseph's Seminary, which is in the First Election District of the Seventh Ward of the City of Yonkers; that on or about the 24th day of June, 1901, while a resident of said Seminary, petitioner addressed a letter to the Mayor of the City of Yonkers," and a similar letter to the board of registry of the election district, stating that he had made the district his residence and domicile, actual and legal, and that the purpose of the letters was to give public evidence of that fact; that "when your petitioner came to St. Joseph's Seminary he intended to make said seminary his residence for all purposes, and since that time he has had no other residence, legal or otherwise; that petitioner is a citizen of the United States, over twenty-one years of age, and has resided in the State of New York for more than one year, last past, and in the County of Westchester for more than four months, last past, and in the First Election District of the Seventh Ward of the City of Yonkers for more than thirty days, last past," etc. Upon this state of facts, aside from the formal averments of having appeared and demanded registration, which was refused, the petitioner asks for an order directing the board of registration to enter his name upon the roll, and the question presented is whether the petitioner has established facts which entitled him to the order. The learned justice of this court before whom the motion was made denied the same, and from the order entered the petitioner appeals to this court.
Section 3 of article 2 of the State Constitution provides: "For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States; * * * nor while a student of any seminary of learning," etc. It is important, in considering the rights of the petitioner, that it should be known where his previous residence had been and what steps he had taken looking to an abandonment of such residence, for the law is well settled that the previous residence remains for the purposes of voting until a new one has been acquired, and there can be no such acquisition merely by an abode as a student in an institution of learning. ( Matter of Goodman, 146 N.Y. 284, 288.) If the petitioner was a resident of the State of Rhode Island and came into the State of New York for the purpose of entering St. Joseph's Seminary as a student, this action on his part or any declaration of intention, not made with reference to matters entirely independent of the seminary, would have no bearing upon the question. He is not deemed to "have gained or lost a residence" by reason of his abode at the seminary as a student, and unless he has abandoned his residence in Rhode Island by some unequivocal act, as in the case of Barry ( Matter of Garvey, 147 N.Y. 117, 120, 121), he could not have gained a residence for the purpose of voting in the State of New York. See the case of Yardley ( Matter of Garvey, supra, 123.) As was said by FINCH, J., in Matter of Goodman ( 146 N.Y. 288): "I am unable to say that where the new abode is occasioned and explainable by and referable to the presence as a student without any independent facts showing a change of residence, not only intended but accomplished wholly outside of the student character, the new residence in the new district is acquired, because it is a change of residence merely from one district to another. In such a case I think the old residence remains and is not lost until, after the temporary sojourn as a student, a new residence is acquired." The petitioner does not suggest a single fact to show a change of residence outside of his abode at the seminary, either in his letter to the mayor or in his petition. He alleges that he is a citizen of the United States and must, therefore, have had a legal residence somewhere within the United States before entering the seminary, and as there is no evidence of any action tending to show that he had abandoned such residence or that he had ever done anything outside of taking up his abode at the seminary for the purpose of becoming a student, there is a complete lack of evidence of a change of residence and the petitioner, under the authorities, is not entitled to the order which he asks in this proceeding. In Matter of Barry ( 164 N.Y. 18, 21) the court close the discussion of a similar case with the following: "A person who is a legally qualified voter may leave his home in any part of the State and enter an institution of learning as a student; by this act he does not lose his residence for the purpose of voting at the place from whence he came. The fact that he is enrolled as a student in an institution of learning has no effect whatever upon his residence for the purpose of voting; he could if he chose acquire a residence at the place where the seminary is located, but this would have to be established by acts entirely distinct from his residence therein. The mere intention to change his residence would not suffice." The declarations of the petitioner made in a letter to the mayor of Yonkers and to the board of registry of the district are of no more consequence than his verbal declarations to the board of registry, and as no facts bearing upon the change of residence were placed before the court, which were independent of the temporary residence of the petitioner as a pupil in the seminary, we are clearly of opinion that the order denying the motion was proper.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.