## Facts

- Alvord & Alvord (plaintiff), a New York law firm, sued Raymond Patenotre and Eleanor Patenotre (defendants) in New York Supreme Court.
- On October 5, 1949, the court granted plaintiff an order authorizing substituted service on the defendants.
- Service was made on October 5, 1949 by affixing copies of the summons, complaint, and the service order to the door of the defendants’ New York apartment.
- Copies were also mailed to the same address at about 1:05 a.m. on October 6, 1949.
- At the time service was made, the defendants were in the process of leaving the United States to relocate to Switzerland; their attorney stated they did not arrive in France until October 5, 1949.
- No showing was made that the defendants had arrived in Switzerland when the papers were posted and mailed.
- Defendants moved to vacate the substituted-service order and to set aside the service made under it, arguing in substance that they were no longer subject to New York’s jurisdiction because they were leaving the country and intended to establish a domicile abroad.
- In addressing the motion, the court treated domicile as central and noted an admission by defendants’ counsel that the defendants’ domicile had been in the United States up to the time of departure.

## Issues

1. Whether defendants had changed their domicile from the United States to Switzerland by the time substituted service was effected, even though they had not yet arrived in Switzerland.
2. Whether substituted service by posting on defendants’ apartment door and mailing to that address was valid and sufficient to support personal jurisdiction over defendants who were outside the state (and in transit abroad) when service occurred.
3. Whether plaintiff’s earlier reliance on defendants’ alleged statements in seeking temporary injunctive relief constituted a binding admission of the truth of those statements.

## Decision

- The court denied defendants’ motion to vacate the order for substituted service and to set aside the service made pursuant to that order.
- The court concluded that defendants’ domicile remained in the United States at the time of service because they had not yet arrived in Switzerland, their intended new domicile.
- The court upheld substituted service at defendants’ New York apartment (posting and mailing) as effective under the order.
- The court rejected the claim that plaintiff’s application for a temporary injunction, made in reliance on the possible truth of alleged declarations, amounted to an admission that those declarations were true.

## Legal Principles

- A prior domicile continues until a new domicile is actually acquired; intent to relocate, without physical presence in the new place, does not end the existing domicile.
- Acquisition of a new domicile requires physical presence in the new location together with an intent to make it a home.
- A court may exercise personal jurisdiction over a domiciliary even when the person is absent from the state or country at the time process is served, so long as service complies with authorized methods.
- Substituted service directed to a defendant’s dwelling or last residence, coupled with mailing, can be a valid method of service when ordered by the court and reasonably calculated to provide notice.
- A request for temporary injunctive relief based on contested allegations does not, without more, amount to a binding admission of those allegations for purposes of the merits.

## Conclusion

Because the defendants had not yet arrived in Switzerland and therefore had not acquired a new domicile, their U.S. domicile continued at the time plaintiff served process by court-ordered posting and mailing to their New York apartment; the court accordingly upheld substituted service, denied the motion to vacate, and also rejected the argument that plaintiff’s earlier request for temporary injunctive relief created any binding admission as to disputed facts.


Alvord & Alvord v. Patenotre, 196 Misc. 524, 92 N.Y.S.2d 514 (1949)