and 136 New York State Reporter

of Columbia-it is the "supreme law of the land," so declared by the Constitution, and it affects more or less every citizen of the United States in so far as it relates to the creation of courts at least, for it insures the safety and tranquillity of the seat of the national government, and guaranties to individuals within the district an administration of justice to which all men are entitled. We are all within the jurisdiction of the "supreme law of the land," and we are bound to recognize and apply it whenever it affects the substantial rights of parties before this court. The lower courts of the United States, as well as the Supreme Court on appeal from their decisions, take judicial notice of the Constitution and public laws of each state of the Union, without formal proof of the same. Mills v. Green, 159 U. S. 651, 657, 16 Sup. Ct. 132, 40 L. Ed. 293, and authorities there cited. In the case cited the court went much further and took judicial notice of political facts within a state. Generally speaking, judicial notice will be taken by all the courts of a state or country of the public statute laws enacted by the lawmaking body. 17 Am. & Eng. Ency. of Law, 928. We have shown that under the Constitution the Congress is the exclusive lawmaking body of the District of Columbia, and that it is in the exercise of the sovereign power of the people of the United States in creating a Supreme Court for that district, and it therefore cannot be fairly questioned that such an act is a public act, entitling it to such notice. It has been held that it is sufficient if its provisions extend to all persons within described territorial limits or of a particular locality. 17 Am. & Eng. Ency. of Law, 931; Burnham v. Webster, 5 Mass. 266; Rauch v. Commonwealth, 78 Pa. 490. It is a public act in its broadest sense, for it relates to the administration of justice in a community in which the people of the United States have a particular interest, and without which there would be no safety to those who are compelled to transact business at the national capital.

But if it were not entirely clear that the court was authorized to take judicial notice of the statute, or of the fact of the existence of the Supreme Court of the District of Columbia, we are of the opinion that the judgment should be affirmed. It is now conceded that there is a properly authenticated certificate of the record of the Supreme Court of the District of Columbia, showing the judgment of that court in favor of the plaintiff. There being a properly authenticated record, this raises the presumption of jurisdiction. Buffum v. Stimpson, 5 Allen (Mass.) 591, 593, 81 Am. Dec. 767; Bissell v. Wheelock, 11 Cush. (Mass.) 277; Knowles v. Gaslight & Coke Co., 19 Wall. (U. S.) 58-61, 22 L. Ed. 70; Hanley v. Donoghue, 116 U. S. 1-5, 6 Sup. Ct. 242, 29 L. Ed. 535. In the case last cited the court says:

"Congress, in the exercise of the power conferred upon it by the Constitution, having prescribed the mode of attestation of records of the courts of one state to entitle them to be proved in the courts of another state, and having enacted that records so authenticated shall have such faith and credit in every court within the United States as they have by the law or usage of the state from which they were taken, a record of a judgment so authenticated doubtless proves itself without further evidence; and, if it appears upon its face to be a record of a court of general jurisdiction, the jurisdiction of the court over the cause and the parties is to be presumed unless disproved by extrinsic evidence or by the record itself."

The District of Columbia, with its national legislative body, is a state within the meaning of the statute providing the means of authenticating records (Talbot v. Silver Bow County, 139 U. S. 438, 444, 11 Sup. Ct. 594, 35 L. Ed. 210), and the plaintiff having placed in evidence the record of the Supreme Court of the District of Columbia, and it appearing upon the face of the record that that court is a court of general jurisdiction, there is a presumption of jurisdiction, which the defendant does not meet by proof to the contrary. Bissell v. Wheelock, 11 Cush. (Mass.) 279.

Upon the trial the defendant objected to the sufficiency of the proof offered of certification and took an exception to its admission. That was one of the grounds urged for a reversal. The plaintiff upon the argument was permitted to introduce into the record a proper certificate. This was essential to sustain the judgment, and under the circumstances costs and disbursements should not be granted to either party. The judgment and order appealed from are therefore affirmed, with

out costs.

MCLAUGHLIN, J., concurs.

(53 Misc. Rep. 18)

DRESSER v. MERCANTILE TRUST CO. et al.

(Supreme Court, Trial Term, Nassau County. February 9, 1907.) VENUE-CHANGE OF PLACE OF TRIAL-RESIDENCE OF PLAINTIFF--EVIDENCE. Evidence on a motion to change the place of trial, on the ground that, at the commencement of the action, plaintiff was a resident of the county to which the change was sought, and not of the county in which the action was brought, held insufficient to sustain the contention.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Venue, § 42.]

Action by Daniel Le Roy Dresser against the Mercantile Trust Company and others. Defendants move to change the place of trial. Denied.

Two motions are made by different defendants upon the same or like affidavits for an order directing the change of the place of trial of this action from Nassau county to New York county upon the ground that the plaintiff. Daniel Le Roy Dresser, was not at the time of the commencement of this action and is not now a resident of Nassau county, but that he was at that time and is now a resident of New York county. One of these motions is made by the defendants the Mercantile Trust Company and Krech, and the other by the defendants McCook, Alexander-Gulliver, and Deming.

Alexander & Colby (William F. Goldbeck, of counsel), for the motion of Mercantile Trust Company and Krech.

William C. Prime, for the motion of McCook and others.

Frank Sullivan Smith (Frederic W. Frost, of counsel), opposed.

SCUDDER, J. The defendants, in support of their motions, claim that plaintiff was a resident of the city and county of New York, and not a resident of the county of Nassau, at the date of the commencement of this action, November 26, 1906. To sustain their contention that plaintiff was a resident of New York City on that date, it was a matter of the first importance for defendants to offer some evidence that

and 136 New York State Reporter

plaintiff had or maintained at that time some establishment or dwelling place in that city. The only statements in reference thereto which are contained in the affidavits submitted in support of the motion are found in the affidavit of one Darroe. This deponent avers that he examined Trow's New York City Directory for several years, and that in said directory for 1903 the house address of the plaintiff was given at Oyster Bay, L. I.; in that of 1904, at 44 East Fiftieth street; and in that of 1905, and also that of 1906, at 30 Central Park South. The bare statement in the City Directory of 1906 that plaintiff's house address was at 30 Central Park South in no way tends to establish the fact that plaintiff had or maintained a place of abode at that address in November, 1906. The defendants could readily have ascertained the fact by inquiry at that address; but they do not seem to have done so, or, if they did, the result of the inquiry is not told in any affidavit which they have submitted.

The only other matter in defendants' affidavits which bears on the question of plaintiff's residence in New York City is the fact that the plaintiff, in a petition in bankruptcy proceedings to cancel a certain order of arrest, verified July 6, 1906, stated that "his permanent residence" was in the city of New York. The plaintiff in his affidavit states that the phraseology of the petition was prepared by his attorney; that he did not intend by the phrase above quoted, nor did his counsel intend thereby, nor did the opposing counsel understand that it was intended thereby to convey the idea that plaintiff had changed his domicile or legal resience from Oyster Bay to New York county, but only that plaintiff would remain within the county of New York and the jurisdiction of the bankruptcy court. This explanation is supported by the affidavit of plaintiff's attorney in the bankruptcy proceeding and the affidavit of the attorney who procured the order of arrest. Under these circumstances the phrase used in the petition cannot be regarded as conclusively establishing that the residence or domicile of the plaintiff was in the city of New York. From the affidavits submitted, there can be no question but that prior to the time when the plaintiff took an apartment in the city of New York, which appears to have been in July. 1903, plaintiff had established his legal residence or domicile at Oyster Bay, in Nassau county. The taking of an apartment in the city of New York, and the occupancy thereof by the plaintiff for about three years, would not of itself effect a change of his domicile, unless accompanied by an intention to abandon his domicile at Oyster Bay and to acquire another in New York. De Meli v. De Meli, 120 N. Y. 485, 24 N. E. 996, 17 Am. St. Rep. 652; Dupuy v. Wurtz, 53 N. Y. 556. The plaintiff asserts in his affidavit that his domicile has continuously been at Oyster Bay, and that his occupancy of the apartment in New York was only intended to be temporary. This assertion is supported by averments of various declarations and sworn statements, which plaintiff made at various times during the period of his occupancy of the New York apartment, that he resided at Oyster Bay. It is also shown that plaintiff voted at Oyster Bay at the public elections in the years 1904 and 1906. It further appears that on or about October 1. 1906, before the commencement of this action, plaintiff surrendered his lease of the New York apartment and dismissed his servants, that the

furniture was removed to Oyster Bay, and that plaintiff was frequently in the village of Oyster Bay during October and November, 1906. It does not appear, however, from plaintiff's affidavit, where his place of abode in Oyster Bay, if any, was during these months. It is to be borne in mind that the burden of proof on this motion is on the defendants to establish satisfactorily that plaintiff had no residence in Nassau county at the time when this action was commenced. Bischoff v. Bis

choff, 88 App. Div. 126, at page 127, 85 N. Y. Supp. 81.

Defendants claim that at that time the plaintiff actually resided in the county of New York. This claim is not supported by sufficient affidavits, and is refuted by plaintiff's affidavit that he abandoned his New York apartment on October 1, 1906. The question here presented is not whether the plaintiff had the choice of bringing the action in the county of his domicile, or in a county where he actually resided, or whether such choice would be permissible under section 984 of the Code of Civil Procedure. So far as the facts are disclosed by the affidavits, the plaintiff did not reside or have a place of abode in the city of New York when the action was commenced. At that time, however, he claimed and had a domicile in Nassau county, and it is not shown that he also had an actual residence or place of abode in any other county. Under these circumstances, plaintiff must be deemed to have resided in Nassau county, within the meaning of section 981 of the Code of Civil Procedure, when the action was commenced.

Motions denied, with costs.

(117 App. Div. 493)

HAMLIN v. HAMLIN et al.

(Supreme Court, Appellate Division, First Department. February 8, 1907.) 1. EVIDENCE-PAROL EVIDENCE-DEEDS-DELIVERY-ADMISSIBILITY.

Where, in a suit to remove a cloud from title, it appeared that shortly after plaintiff's marriage to her deceased husband, he had purchased the land in question and caused it to be conveyed to her, but that subsequently at his request she had executed deeds of it to him, and the deeds after his death were found unrecorded in his safety deposit vault, parol and circumstantial evidence was admissible to show that it was not the husband's intention to take title.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 1978.] 2. WITNESSES-COMPETENCY-TRANSACTION WITH DECEDENT.

In a suit to quiet title to land to which plaintiff had executed a deed to her deceased husband, her testimony as to statements made to her by her husband in regard to the conveyance was incompetent, under Code Civ. Proc. § 829, in relation to testimony as to transactions with a decedent.

[Ed. Note. For cases in point, see Cent. Dig. vol. 50, Witnesses, § CG4.] 3. TRIAL-OBJECTIONS TO EVIDENCE.

In a suit to quiet title to land conveyed by plaintiff to her deceased busband, plaintiff testified as to what she had told her coexecutor of what her husband had told her as to the conveyance, and defendant's counsel acquiesced in permitting the testimony to stand, but later moved to strike it on the ground that it was "immaterial, irrelevant, incompetent, and not within the issues." Held, that there was no such objection to the testimony as to call for a reversal of a judgment for plaintiff on the ground

and 136 New York State Reporter

that its admission was contrary to Code Civ. Proc. § 829, in relation to testimony as to transactions with a decedent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 213.]
McLaughlin and Houghton, JJ., dissenting.

Appeal from Special Term, New York County.

Action by Mary B. Hamlin against Herbert W. Hamlin and others. From a judgment at Special Term (100 N. Y. Supp. 701) in favor of plaintiff, defendants appeal. Affirmed.

Argued before PATTERSON, P. J., and MCLAUGHLIN, SCOTT, HOUGHTON, and LAMBERT, JJ.

Robert A. Paddock, for appellants.
Henry W. Taft, for respondent.

SCOTT, J. This action, to remove a cloud upon plaintiff's title to real estate, presents an unusual state of facts.

The plaintiff on April 18, 1904, married Frederick R. Hamlin, now deceased. Shortly after their marriage Frederick R. Hamlin negotiated the purchase of the two pieces of real property involved in the action. One piece, situated at Bellport, in Suffolk county, was conveyed to plaintiff on August 16, 1904, and the other, situated in the city of New York, was conveyed to her on September 7, 1904. Frederick R. Hamlin paid the consideration for both pieces of land, and it was at his instance that the deeds were made out to plaintiff. The deed to the house in the city of New York was placed on record the same day that it was executed, and the deed to the property in Suffolk county was placed on record some time afterwards. On September 8, 1904, the plaintiff executed deeds to her husband, Frederick R. Hamlin, of both of these pieces of property. After his death, on November 27, 1904, the two deeds, both unrecorded, were found in a box belonging to him, and to which he alone had access, in a safe deposit vault. With them was found a policy of fire insurance originally issued to James O'Brien, the grantor of the New York property, on which appeared an indorsement, dated September 9, 1904, reciting that the interest in the policy was vested in plaintiff "as owner." The two houses were used by Mr. and Mrs. Hamlin until his death as their family residence, and the expense of supporting them and making repairs and improvements were paid and borne by Mr. Hamlin.

The plaintiff's contention is that although the deeds from herself to her husband were voluntarily executed by her, and were permitted by her to come into and remain in his possession, there never had been in a legal sense a delivery to or acceptance by him so as to vest the title in him. The case, in effect, turns upon the question as to what were Frederick R. Hamlin's intentions in causing his wife to execute the deeds and intrust their custody to him and her intention in so doing, and upon this subject a considerable amount of testimony was taken. Of direct testimony there was little, for, of course, the plaintiff's mouth was closed as to any statements made by her deceased husband, except to the limited extent that the defendants permitted her to testify on that subject, or themselves offered evidence of her statements. There was considerable evidence, however, as to declarations made by the deceased