prepared to make in the absence of authority on the subject. It is an undoubted fact that in matters of bankruptcy the authority of the United States court is paramount, and it has also been said to be "exclusive." See Matter of Watts, 190 U. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933. Upon the authority of that case I think I must hold that the filing of the voluntary petition in bankruptcy by this judgment debtor was not a contempt of this court.

The moving party cites as an alleged authority the case of Spaid v. Hage, 1 N. Y. Wkly. Dig. 24, claiming that it is an authority and a case directly in point on the proposition that the filing of a petition was a contempt. A careful reading of that case clearly discloses that the defendant had got into contempt in the state court before he filed his petition by failing to appear for examination. The Court of Common Pleas held that he was guilty of contempt, but presumably the contempt referred to was the disobeying of the order before the petition was filed. It was held in the case of National Wall Paper Co. v. Gerlach, 15 Misc. Rep. 640, 37 N. Y. Supp. 428, and in the case of Canda v. Gollner, 73 Hun, 493, 26 N. Y. Supp. 449, that the making of a general assignment, even without preferences, was in violation of a supplementary proceedings order, and the plaintiff's attorney urges that these cases are analogous in principle to the one at bar. Upon reading both of those cases it will be observed that the decision turns upon the fact that:

"The plaintiffs were injured by this act; they had taken steps by which they could have had the first lien on the estate, real and personal, of the judgment debtor."

Therein I think the Bankruptcy Law is to be differentiated from the State Assignment Law (Consol. Laws, c. 12, art. 2), because of the ex post facto effect of the Bankruptcy Law, already referred to.

[2] The question remains as to whether the defendant was justified, having filed his petition, in failing to appear before the referee, as he had been directed to do. In defense of that action his counsel cites Matter of Breslauer (D. C.) 10 Am. Bankr. Rep. 33, 121 Fed. 910, and cites a quotation therefrom by Judge Ray to the effect that: "The filing of a petition in bankruptcy is a caveat to all the world, and in effect an attachment and injunction."

Here again, if we are to take this language literally, and if a filing of a petition in bankruptcy is both a caveat and injunction, the defendant may have been well advised to stay away from the supplementary proceedings, and, in fact, if an adjudication in bankruptcy is both a caveat and injunction, it would be perilous for those acting under the orders of the state court to proceed at all. I do not think the language quoted was designed to have any such effect. The citation given by Judge Ray is Mueller v. Nugent, 184 U. S. 1, 22 Sup. Ct. 269, 46 L. Ed. 405, where we find the same language quoted, but as there appears it was originally used by the court in Bank v. Sherman, 101 U. S. 403, 25 L. Ed. 866. Having recourse to that case where the expression originated, we find that therein, as in both the other cases where the words in question had been used and quoted with approval,

it was applied only to property rights. The language as it originally appeared in Bank v. Sherman, supra, is as follows:

"The filing of the petition was a caveat to all the world. It was in effect an attachment and injunction. Thereafter all the property rights of the debtor were ipso facto in abeyance until the final adjudication."

I do not think the dictum should be extended beyond what it was originally intended to cover and what it was applied to in the three cases cited, viz., property rights; and it is, therefore, not an authority for the proposition that a judgment debtor may treat with contempt. the orders of a state court, even if he has placed his property and himself in the bankruptcy court.

While I think that this defendant was within his rights in filing a voluntary petition, notwithsanding the restraining order, and notwithstanding the undoubted supremacy of the United States courts, he was still bound to obey the orders of the state courts, or, by taking the proper procedure, relieve himself therefrom. This opinion finds. its foundation and support in the fact that General Orders in Bankruptcy provide apparently for just such a case as this, rule 12, section. 3, which says that:

"An injunction to stay proceedings of a court or referee of the United States, or of a state, shall be heard and decided by the judge."

It is probably true that the proceedings in the state court were to all intents and purposes rendered ineffectual by the bankruptcy proceedings, a fact so palpable that I have no doubt the defendant might have obtained an order relieving him from further appearances in any of the state courts of competent jurisdiction, as well as from the United States courts under the rule just quoted. However, I do not think it rested with the bankrupt to say that he should disregard the plain orders of the state court.

I therefore find and decide that the judgment debtor's failure to appear before the referee on the 26th day of May, 1914, was a contempt of court, for which the defendant Bielby is fined punitively the sum of $25. An order imposing such fine may be prepared accordingly.

Ordered accordingly.

(Nassau County Court, Special Term. October 22, 1914.) COSTS ($ 110*)-SECURITY FOR-"NONRESIDENCE."

Plaintiff, who, after the institution of an action in the county of his residence, closed his house for the winter and took up his abode temporarily in hotels in cities in which his theatrical business led him, did not become a nonresident for that reason, but retained his original residence, and could not be required to give bond for costs on the ground of "nonresidence."

[Ed. Note. For other cases, see Costs, Cent. Dig. §§ 427-438, 444, 448, 449, 456; Dec. Dig. § 110.*

For other definitions, see Words and Phrases, First and Second Series, Nonresidence.]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Action by Earnest R. Ball against George Howard Randall and another. On motion to require security for costs, on the ground that plaintiff had ceased to be a resident of the county. Motion denied.

Maxson & Jones, of Hempstead (Henry L. Maxson, of Hempstead, of counsel), for the motion.

Elvin N. Edwards, of Freeport, opposed.

NIEMANN, J. The plaintiff makes the following statement in his affidavit, submitted in opposition to this motion, upon the question of his residence:

"That at the time of the collision as aforesaid the plaintiff was a resident of the village of Freeport, Nassau county, N. Y., residing on Ray street in said village. That on the 1st day of September, 1914, he closed up his Ray street house on account of his business, which is that of a theatrical man, because at no time during the winter can plaintiff tell just where he will be. Deponent, therefore, can have no permanent residence, until the late spring of 1915, when he expects to reopen his home in the village of Freeport as aforesaid. Deponent further says: That Freeport is the only place where he has any residence. That while stopping in New York City he stays at the University Hotel, at No. 106 West Forty-Seventh street, just the same as he would stay at other hotels in large cities on his theatrical circuit; but deponent cannot call any place except Freeport his permanent home, because Freeport is the only place at which he has within the last year stayed for a longer period than one month at any one time. * That deponent maintains no permanent New York City address, but stops at hotels as the occasion arises for stopping in New York City or any other city."

If the foregoing statements are to be taken as true (and there is no denial made of them, and no reason for questioning their truth), the plaintiff has a place of residence in Nassau county. The fact that he has, for the purpose of attending to his business, seen fit to close up his house at Freeport, and to sojourn in the city of New York and other cities for a time, does not make him a nonresident of the county.

I am not losing sight of the fact that there is a difference in meaning between the terms "domicile" and "residence" (Briggs v. Rochester, 16 Gray [Mass.] 337, 340; Matter of Wrigley, 8 Wend. 134, 140; Burrill v. Jewett, 25 N. Y. Super. Ct. 701, 702; Bartlett v. City of New York, 7 N. Y. Super. Ct. 44), and that a man may have his domicile in one place and his actual residence in another (Frost v. Brisbin, 19 Wend. 13, 32 Am. Dec. 423; Liscomb v. New Jersey R., etc., Co., 6. Lans. 75; Campbell v. Campbell, 90 Hun, 233, 35 N. Y. Supp. 280, 693; Eaves Costume Co. v. Pratt, 2 Misc. Rep. 420, 22 N. Y. Supp. 74); also that a man may be a resident of two places at one and the. same time, and that "to establish a residence requires a less permanent abode than to give a domicile, or even to create an inhabitance" (Bell v. Pierce, 51 N. Y. 12; Union Hotel Co. v. Hersee, 79 N. Y. 455, 462, 35 Am. Rep. 536). This is illustrated by the cases of Douglas v. Mayor of New York, 9 N. Y. Super. Ct. 110, and Bartlett v. City of New York, supra, where it was held that a man may have several places of residence occupied by him at different seasons of the year.

It follows that the plaintiff could have his domicile and a summer residence at Freeport, and that he could also have a residence in the city of New York or elsewhere in the winter; but there is no proof that he has actually acquired any other or additional residence. According

to the plaintiff's affidavit, his home or domicile is at Freeport, and it must be presumed that his residence is where his domicile is, unless there is proof that he has a residence at a place other than his domicile. It is not disputed that when this action was commenced both the domicile and residence of plaintiff were at Freeport, in this county, and it is not questioned that his domicile is still there; but the claim is made that because he has closed up his home at Freeport, and has gone to the city of New York and other cities in furtherance of his business, and does not expect to return to Freeport until next spring, he has ceased to be a resident of the county.

It is true that the plaintiff is physically absent from the county, but this does not make him a nonresident of the county. It is well settled by authority that absence is not equivalent to nonresidence. Hart v. Kip, 148 N. Y. 306, 42 N. E. 712; People v. Platt, 117 N. Y. 160, 22 N. E. 937; Taylor v. Norris, 104 App. Div. 21, 93 N. Y. Supp. 356. This distinction is clearly stated by Mr. Justice Hirschberg, writing for the court, in Taylor v. Norris, supra, where he states the controlling rule as follows (104 App. Div. 22, 93 N. Y. Supp. 357):

"While the question of domicile is not necessarily controlling, and a residence may be acquired within the meaning of the statute other than at the place of domicile, I do not think that the mere fact of being out of the state temporarily constitutes the individual a nonresident. In the cases cited by the appellant there was something more than mere absence under such circumstances as induced the plaintiff to visit at her uncle's house for treatment. The doctrine of such cases, in so far as they hold that absence from the state is the equivalent of nonresidence, has been overthrown, to that extent, at least, by the decision of the Court of Appeals in Hart v. Kip, 148 N. Y. 306 [42 N. E. 712], in construing a provision of the Code of Civil Procedure similar in terms to the one under consideration herein, viz., that provision of section 401 which then provided for a suspension of the statute of limitations where, after a cause of action has accrued against a person, he departs from and resides without the state, etc. See Laws 1888, c. 498. The court said (148 N. Y. 310, 42 N. E. 713): 'In order to bring the case within the statute the defendant must reside without the state, and we cannot perceive that the courts below have given any effect whatever to that word, since the decision proceeded upon the ground that absence was sufficient to suspend the operation of the statute. The residence of the party is presumed to be where his domicile is, though he may be temporarily absent, until some facts are shown to change the presumption or to justify a finding that he has taken up another residence elsewhere."

I do not find from the evidence submitted on this motion that the plaintiff has acquired a residence in the city of New York, or anywhere else outside of Nassau county. It appears that he is not located for any length of time at any one place. He does not keep house anywhere, but stops at hotels and is in a migratory state, going to various cities or places to which his business may call him, and stopping there for short periods of time. Can it be said that a man who is thus situated loses the benefit of his residence and must give security for costs in order to maintain an action in the courts of his home county? If mere absence constituted nonresidence within the meaning or spirit of these sections of the Code, any resident of a county, who brings an action in the County Court and during its pendency is called away on a business trip, or on a journey in search of health, or to spend a vacation, could be held to have ceased to be a resident of such county, and be

compelled to give security for costs the same as any stranger. Under the construction of the section of the Code here in question made in the case of Taylor v. Norris, supra, which is a controlling authority in this department and is in thorough accord with the rule of construction laid down by the Court of Appeals, this motion must be denied, with $10 costs to the plaintiff to abide the event.

(87 Misc. Rep. 537)

In re HOUSER'S ESTATE.

(Surrogate's Court, New York County. November 4, 1914.)

WILLS (8 634*)-ESTATES DEVISED-CONSTRUCTION.

Where a testator gave his wife control of all his real and personal property during her lifetime, and directed that at her death the entire estate should be sold and all moneys divided among his named children, with the provision that, if any were not living at that time, his or her share should go to his heirs, the children took vested instead of contingent remainders, for the period of enjoyment only is postponed, and it is the policy of the law to construe remainders as vested rather than contingent. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec Dig. § 634.*]

In the matter of the estate of Peter Houser. Will construed. R. E. & A. J. Prime, of New York City (W. C. Prime, of New York City, of counsel), for petitioner.

Benjamin Berger, of New York City, for Aaron Marks.

FOWLER, S. This is an application under section 2615 of the Code. to obtain a construction of the will of the deceased. The will is very short, containing but two paragraphs; the first disposing of the testator's property and the second appointing his two daughters executrices. The first paragraph provides as follows:

"First. After my lawful debts are paid, I give to my wife Mary all my real and personal property, and she is to have control during her lifetime, and at her death, within sixty days thereafter, my entire estate is to be sold at public auction, and all the proceeds and all other money belonging to my estate shall be equally divided among my children, viz., Lizzie, Katie, Henry, Joseph and Edward, and if any of my children are not living at that time, her or his share is to go to her or his heir or heirs. Each one of my children or their heirs shall receive their share within ninety days after the death of my wife, with the exception of my son Henry, whose share shall be held in trust for him by my daughters Lizzie and Katie, and they shall from time to time pay to him from his share such money as in their judgment is necessary for his maintenance, and at his death the amount then held in trust for him shall go to his legal heirs."

The sole question for determination is: Are the remainder interests of the children, Lizzie, Katie, Joseph, and Edward, vested or contingent? A consideration of this paragraph shows that the testator intended to create a life estate in his real and personal property for the benefit of his widow, and by the use of the word "control," in the second line, meant the "use" or "enjoyment," with remainder over to his children "at her death." The children of the testator upon his death took, under the provisions of this will, a vested remainder in all the property *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes