#### Mary B. Webster, as Administratrix, etc., of Clarence L. Webster, Deceased, Respondent, *v.*M. W. Kellogg Company, Defendant, Impleaded with New York, New Haven and Hartford Railroad Company, Appellant.

Second Department,

June 4, 1915.

Death by negligence»—Surrogate’s Court—jurisdiction to issue letters of administration — residence question of fact — issue in action by administratrix fdr- death of husband — general verdict — failure to request special finding.

In an action Uy an administratrix to recover for the death of her husband, the denial of the allegation that the letters were “ duly issued ” raised an issue and enabled the defendants to make an attack, but only for fraud or collusion. The establishment of “actual fraud” was not essential.

The question of residence of a decedent conferring jurisdiction upon the Surrogate’s Court to issue letters of administration is one of fact.

Where, in such an action, it appeared from the undisputed testimony of the plaintiff that she and the decedent had lived in the county where the letters of administration were issued for eight years, and that the decedent went therefrom to Connecticut to work for his employer; that she thereafter joined him and lived with him at a boarding house from the middle of November until the following March, when he was killed in the course of his employment, and that the decedent did not keep a physical home in the county where the letters were issued after his wife joined him in Connecticut, the jury, as an incident to a general ver*444diet for the plaintiff, were entitled to find that the decedent was a resident of Kings county.

If counsel desired to offset the effect of the general verdict, he should have requested a special finding as to the jurisdiction of the Surrogate’s Court to issue letters.

Appeal by the defendant, New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of June, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 29th day of December, 1914, denying its motion for a new trial made upon the minutes.

*James W. Carpenter [Charles M. Sheafe, Jr.,*with him on the brief], for the appellant.

*Vine H. Smith [Martin T. Manton*with him on the brief], for the respondent.

Jenks, P. J.:

Appellant avowedly presents but one question — the jurisdiction of the Surrogate’s Court of the county of Kings to issue letters of administration. The denial of the allegation that the letters were *“*duly issued ” raised an issue (Code Civ. Prod. § 532; *Ziemer*v. *Crucible Steel Co.,*99 App. Div. 169), and enabled the defendants to make an attack, but only for fraud or for collusion. *(Ziemer*v. *Crucible Steel Co., supra; Hoes*v. *N. Y., N. H. & H. R. R. Co.,*173 N. Y. 435.) The jurisdiction of the Surrogate’s Court was exercised upon the fact that the deceased was *“*at the time of his death a resident bf the county of Kings.” (See Code Civ. Proc. § 2476; now Code Civ. Prdc. § 2515, as amd. by Laws of 1914, chap. 443.) The attack was directed against such residence. At the close of prbof tile defendants moved to dismiss the plaintiff upon the gróUnd,. *inter alia,*that the Oourt had no jurisdiction, and the court reserved decision, but subsequently denied that motion as well as a motion for a new trial made upon that ground.

The question Of residence is one of fact. *(Dupuy*v. *Wurtz,*53 N. Y. 556. See, too, *Matter of Newcomb,*192 N. Y. 250.) The establishment of *“*actual fraud ” was not essential. *(Hoes*v. *N, Y, N H & H. R. R. Co., supra,*442.) The *445plaintiff was bound to establish the facts conferring jurisdiction. (Code Civ. Proc. § 532.) In *Dupuy*v. *Wurtz {supra)*Rapallo, J., for the court, says that there is no positive rule that regulates the determination of the question of residence, but that necessarily the conclusions must be drawn from all of the circumstances.

I think that the court could not have disposed of the issue as a matter of law, in that there was no proof that the decedent was a resident of the county of Kings at the time of his death, and I think that the court did not err in denial of a motion to set aside the verdict (which necessarily found such residence) as contrary to the evidence. The proof was confined to the testimony of the plaintiff. Her credible and undisputed testimony is that she and the decedent lived in their home in Brooklyn, Kings county, for eight years, and that the intestate went therefrom to Cos Cob, in Connecticut, to work for his employer, who had a contract to be performed at that place. At first she remained in Brooklyn, but thereafter she joined her husband in Cos Cob and lived there with him from the middle of November until the following March, when he was killed in the course of that employment. When he went to Cos Cob he lived in a boarding house, and there is no proof that when she went to him there was any change in his method of living. They had no children and he was a wage-earner receiving about $20 a week. There is no direct evidence of the intestate’s domicile of origin, and the proof justified a conclusion that the intestate adopted Brooklyn as his residence. *(Elbers*v. *United Ins. Co.,*16 Johns. 128, 132.) Such residence is deemed to continue until there was proof of a change of location with the intent to make the new location a residence. (Ch*aine*v. *Wilson,*1 Bosw. 673, Woodruff, J., for the court.) If the intestate went to Cos Cob because his employment necessarily required him to be there, such a stay did not affect his permanent residence. *(Hislop*v. *Taaffe,*141 App. Div. 40, 42, and authorities cited.) The fact that his wife went to him is not of cogent significance. It was natural enough, in that it saved his expense of travel to and from Brooklyn, when the alternative was a separation from his wife during an employment of some months. It is true that *446he did not keep a physical home in Brooklyn after his wife came to him in Oos Oob. If he had been a man of means, or if he had gone fco Cos Cob to carry on business for himself, such fact might have been much more significant of his intent to become a resident of Connecticut. Further, her testimony is that after she went to Cos Cob, her husband was *“*back in Brooklyn ” — that he belonged to the Foresters and the Schnorrer’s Club — and that he was chief ranger of the former organization. I think that the proof was not sufficient, in view of his residence in Brooklyn for eight years, to justify the court in withholding the question of residence from the city or to require the court to disturb a verdict that imported that the intestate was a resident of Kings county at the time of his death.

The verdict was in favor of the plaintiff. It must be assumed, unless the contrary appear, *“*that the jury found all the essential facts of which there was sufficient evidence consistently with the verdict” *.(Gundlin*v. *Hamburg-American Packet Co.,*8 Misc. Rep. 291), and if the counsel desired to offset the effect of the general verdict he should have requested a special finding as to the jurisdiction. (Id.)

The order and judgment must be affirmed, with costs. .

Present — Jenks, P. J., Thomas, Stapleton and Rich, JJ.

The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment and order unanimously affirmed, with costs.