The opinion of the court was delivered by: FORMAN
The petition to dismiss the plaintiff's complaint is based upon two grounds. First, it is contended that Wendel is a resident of New Jersey and not New York, and, hence, the prerequisite, diversity of citizenship, is lacking. Secondly, objection is made that the complaint is not verified.
Evidence relating to the domicile of Wendel was taken before a Special Master. This evidence is supplemented by affidavits.
From the facts submitted it appears that Wendel continuously resided in Trenton, New Jersey, from 1896 to the fall of 1935 at which time he was dispossessed of his home. He states that he then withdrew from New Jersey and established his residence at the Stanford Hotel in the City of New York where his business interests were located. His family, however, remained in Trenton due to his financial embarrassment and for other reasons. The New York residence was maintained until February, 1936, at which time he was allegedly kidnapped and returned to New Jersey where he was eventually confined in the Mercer County Jail. He was released upon bail and escorted by police to New York to testify as a material witness in the case of People of the State of New York v. Ellis Parker and others who were alleged to have kidnapped Wendel. He has been residing at the Hotel Towers in Brooklyn, New York within the personal restraint and custody of the police authorities ever since, and at the expense of Kings County, New York, according to Wendel's own understanding.
In the bail bonds and on other occasions prior to his release from Mercer County Jail, Wendel gave his address as either 349 Walnut Avenue, the home of his daughter, or 703 East State Street, the home of his son, both of which are located within Trenton, New Jersey. Wendel states that the reason he gave these addresses was because he had no actual New York address, and that these were the only places he could be "contacted". Evidence was also offered indicating that he had never lived at either of these addresses.
Wendel's surety testified that Wendel told him on the night of April 17, 1936, just before he was taken to New York that he was "a Trenton man, with a family in Trenton", and that he would return from New York in a short time.
On June 3, 1936, Wendel wrote to Harold G. Hoffman, Governor of the State of New Jersey, stating that he was a citizen of New Jersey. This is also explained. He states that he was seeking the aid of Governor Hoffman, and that he felt "at that time that the only possible way of getting an answer from the Governor was to state that I (he) was a citizen of the State of New Jersey".
In May of 1937 during the trial of United States v. Ellis Parker et als. Wendel stated that he lived in Trenton, New Jersey, that his wife and family lived there, and that he called that his residence.
Francis A. Madden, Assistant District Attorney in Kings County, State of New York, recited in his affidavit that during the course of his investigation in the case of People of the State of New York v. Ellis H. Parker et als. he "ascertained that preceding the kidnapping of Paul H. Wendel, that he resided in the City of New York".
There is other testimony offered which indicates that Wendel has stated on several occasions since he has been held in New York that he was a resident of New York, and that he would like to qualify as a voter of New York.
The foregoing evidence indicates that in April, 1936 Wendel was taken to Brooklyn, New York, and has ever since been detained as a material witness under the protective custody of the police authorities, who observe and control his movements.
In Millett v. Pearson, 143 Minn. 187, 173 N.W. 411, 5 A.L.R. 256, the court stated (page 412): "As a general rule of law persons under legal disability or restraint or persons in want of freedom are incapable of losing or gaining a residence by acts performed by them under the control of others. There must be an exercise of volition by persons free from restraint and capable of acting for themselves in order to acquire or lose a residence. A person imprisoned under operation of law does not thereby change his residence."
In People of New York v. Cady, 143 N.Y. 100, 37 N.E. 673, 25 L.R.A. 399, the defendant at his own request was confined in the Tombs prison *, and it was held that he could not acquire a domicile there for voting purposes in accordance with Article 2, § 3 of the New York Constitution as follows: "* * * no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, * * * while kept at any almshouse, or other asylum * * * at public expense, * * * nor while confined in any public prison." This result was reached even though the defendant had been present ...