Austin v. Slavik , 1956 N.Y. Misc. LEXIS 1503 ( 1956 )

L. Barron Hill, J.

-This is a proceeding to compel the registration of the petitioners as voters in the Forty-ninth Election District, Town of Islip, Suffolk County, New York. Petitioners reside in said election district, having lived there physically since September 29, 1956. Petitioners previously resided in Queens County. They contracted to purchase their present home on October 12, 1955, with closing scheduled for May, 1956. Construction was completed on September 17, 1956. Since the signing of the contract, petitioners have been ready to make the premises their home as soon as it was ready for occupancy. Section 1 of article II of the Constitution of the State of New York requires petitioners to be residents of Suffolk County for a period of four months prior to the election to enable them to vote. Having moved from Queens County in September, 1956, petitioners are no longer permitted to vote there (N. Y. Const., art. II, § 1). It is generally conceded that the term ‘ ‘ resident ’ ’, as employed in the Constitution, means domicile (Matter of Wooley, 108 N. Y. S. 2d 165, 168). An identical situation was presented to the Hon. James T. Hallinan, now a Justice of the Appellate Division of this department, sitting in Special Term, Nassau County, in October, 1936, in Matter of Messiter. The order therein directed that those petitioners be placed on the registered list of voters. This court is advised that this practice has been followed ever since in Nassau County. The right to vote is a cherished one, which must be kept in mind when construing the Election Law. On the facts presented in this petition I find that these petitioners are residents of Suffolk County for the requisite period of four months, and I direct that their names be placed on the rolls of registered voters of the Forty-ninth Election District, Town of Islip, Suffolk County, New York. For clarification, this decision is limited to the facts presented, i.e., a physical possession of the premises 30 days prior to the election after a contract to purchase executed more than four months prior to the election, coupled with an intention of at least four months ’ duration to make the premises a permanent voting residence or domicile. The question of intention of course being a question of fact in each instance.

Submit order.