Limburg v. Snyder , 253 A.D. 844 ( 1938 )

The petition alleges that three ballots counted in the 1937 election were not cast by persons qualified to vote in the second election district of the town of North Castle, Westchester county, and prays that the board of inspectors be required to reconvene and eliminate said ballots from the count. The order from which the appeal is taken decreed that the votes were cast by qualified voters, and denied the application. Order reversed on the law, without costs, and the petitioner’s application granted. It appears from the evidence that none of the three persons, who voted by means of absentee ballots from Washington, had a fixed abode or legal domicile in the town of North Castle. While a person may select a domicile by exercise of his intention, the conduct of the person is indicative of the intention. The three persons herein, having registered and voted in 1936 and previous years in the town of Bedford, thereby indicated their intention to place their domicile in that town. A domicile once established is presumed to continue until changed. The proof fails to show any intention to change the domiciles. (Matter of Rooney, 172 App. Div. 274.) Hagarty, Johnston, Adel, Taylor and Close, JJ., concur.