Dachowitz v. Caplan

JOHNSON, District Judge.

This case is before the court on depositions to determine the residence and citizenship of the plaintiff Hysora C. Dachowitz, now Hysora C. Caplan.

An action in assumpsit was instituted in the name of Aaron B. and Hysora C. Dachowitz, husband and wife, to recover from the defendant, father of the wife, upon an alleged contract whereby the latter promised to convey 70 shares of stock to the plaintiffs 'jointly upon their marriage. The original statement of claim averred that Aaron B. Dachowitz is a resident of Brooklyn, N. Y.; that Hysora C. Dachowitz is a resident of Lebanon, Pa.; and that the defendant is a resident of Lebanon, Pa. The statement was amended by averring that Hysora C. Dachowitz is a citizen of Brooklyn, N. Y., temporarily residing at Lebanon, Pa. A petition was subsequently filed by Hysora C. Dachowitz averring that she was never a citizen of the state of New York. Upon these facts the court directed that depositions be taken to determine the residence and citizenship of the plaintiff Hysora C. Dachowitz, and to determine whether the jurisdiction of the court was properly invoked.

The depositions and evidence before the court show clearly that the plaintiff Hysora C. Dachowitz, now Hysora C. Caplan, always has been, and is now, a citizen and resident of Lebanon, Pa. She was born in Lebanon, and lived there with her parents all her life up until the present time. She was absent from Lebanon only ■ while going to college but always returned to her home during the school vacation periods. She was married to Aaron B. Dachowitz on June 19, 1934, and, after a trip of several weeks or a month, she and her husband returned to Lebanon, where they lived with her parents in her parents’ home. Aaron B. Dachowitz left his wife on November 5, 1934, and went to New York, and the wife continued to live in her parents’ home. She later obtained a divorce from her husband in the courts of Lebanon county, having in that proceeding proved her residence to have been in Lebanon for at least one year prior to September 11, 1935. She was registered as a voter in Lebanon and paid taxes there in 1933, 1934, 1935, and 1936. She maintained a bank account in Lebanon. She never had a residence in New York state.

The evidence conclusively shows that at all times, including the period of this suit, Hysora C. Caplan, one of the plaintiffs, was- a resident and citizen of Pennsylvania. The pleadings show the other plaintiff is a resident and citizen of New York and the defendant is a resident and citizen of Pennsylvania. Accordingly, there is no diversity of citizenship and the court has no jurisdiction to hear the case. In order for the court to have jurisdiction by virtue of diversity of citizenship, all of the persons on one side of the' case must be citizens of different states from all the persons on the other side. Lee v. Lehigh Valley Coal Co., 267 U.S. 542, 45 S.Ct. 385, 69 L.Ed. 782; Baltimore & Ohio R.R. v. City of Parkersburg, 268 U.S. 35, 45 S.Ct. 382, 69 L.Ed. 834; Danks v. Gordon et al. (C.C.A.) 272 F. 821; Carpenter v. Carden (C.A.) 294 F. 515; Osthaus v. Button et al. (C.C.A.) 70 F.(2d) 392; Nagle et al. v. Wyoga Gas & Oil Corp. (D.C.) 10 F.Supp. 905; 28 U.S.C.A. § 41 (1) note 598.

And now, September 25, 1937, the case is dismissed for want of jurisdiction.