Hanover National Bank v. Stebbins

PER CURIAM. The original affidavit upon which the warrant of attachment was granted justified the issuance of such warrant upon the ground of defendant’s nonresidence. It is insisted, however, that the affidavits used on the motion to vacate such attachment, by their weight, more than counter-balanced such original affidavits, and, if they did not conclusively show that defendant was a resident of the state, they left the question in such doubt that the burden placed upon the plaintiff, of showing nonresidence of the defendant, was not sustained, and therefore that the attachment should be vacated. This was the view taken by the judge on the motion to vacate, and it remains, on this appeal, to determine whether such conclusion was right. No doubt exists but that prior to June, 1891, the defendant was a resident of this city. According, however, to his own account, in that month he gave up housekeeping in this city, stored his furniture, and departed with his family for Europe, where he remained until August following, when he returned, and, after spending a few days in some hotel in this city, he departed for Kansas City, and various places in the west, where his interests were situated, and in which places most of his time has been spent since August, 1891. His wife and a portion of his family remained in Europe, where some of his children were being educated, and had not returned at the time the warrant was granted, in July, 1892. The defendant states that he never acquired a residence in Europe or in Kansas City, or in any place in the west, and that it was his intention, as soon as his wife returned, in the fall of 1892, to resume housekeeping in the city of New York. Taking, however, the statements of the defendant as to his residence during all this period, [530] can there be any doubt as to his being, since June, 1891, a nonresident of this state? The Code, § 636, provides that a plaintiff shall be entitled to an attachment upon showing by affidavit, to the satisfaction of a judge, among other things, that the defendant is “not a resident of the state.” In determining this question of residence for the purpose of an attachment, the distinction must always be kept in mind between it and domicile. The fact that the defendant never acquired a residence in another place, and that he had aE the time since 1891 an intention to return, and resume housekeeping, with his family, in this city, would be sufficient to constitute a domicEe within this state. But the word “residence,” as used in section 636 of the Code, means the abode or place where one actuaEy lives, and not one’s legal domicEe. In other words, a reading of this section wiE show that it was intended to supply a method for the coEection of debts by appropriating property of the debtor to be found within the state, when proceedings against the debtor, personally, are impossible, or liable to be made ineffectual, and thus it aEows the use of the process in rem when process in personam could not be served. As said in Drake on Attachment, (section 65:) “The court oí appeals In New York recognized the compatibility of domicile in that state with actual nonresidence, so as to authorize- the party to be proceeded against by attachment as a nonresident, even where the intention to return existed, and there was no abandonment of domicile.” And in Waples on Attachment (pages 34, 35) it is said: “The condition upon which attachment issues is not that the debtor be a resident of another state or country, but that he be not a resident of the state in which the suit against him is brought, and the attachment issued. * * * The essential charge is that he is not residing or living in the state; that is, that he has no abode or home within it, where process may be served, so as effectually to reach him. In other words, his property is attachable if his residence is not such as to subject him personally to the jurisdiction of the court, and place him upon equality with other residents in this respect” These views are supported by the cases of Frost v. Brisbin, 19 Wend. 11; Haggart v. Morgan, 5 N. Y. 423; Mayor, etc., v. Genet, 4 Hun, 487; Wood v. Hamilton, 14 Daly, 41; Weitkamp v. Loehr, 53 N. Y. Super. Ct. 79. Taking the defendant’s own statements, and applying thereto the Code provisions relative to attachments, interpreted in the light of the decisions above referred to, we think that the defendant, at the time the attachment was issued, was not a resident of Hew York, nor could it be claimed that he was even constructively such resident. Heither his home nor famEy was here, and, though it is sought to be shown that his absence was necessary for his business and health, the principal fact is apparent that his residence again in Hew York was entirely dependent on the time of the return of his famfly, who had been in Europe for more than a year at the time the attachment was issued, and who were to remain abroad at least for months subsequent thereto. The fact that his furniture was stored here, coupled with his intention to resume his resi- „ dence on the return of his famEy, would give him a domicEe here; [531] but, upon all the facts, we think that at the time the attachment was issued the defendant was not a resident of.this state, within the meaning of section 636 of the Code, and that, therefore, the attachment was properly issued against his property within this state. Our conclusion, therefore, is that the motion to vacate the attachment should have been denied, and that the order vacating the attachment, from which this appeal is taken, should be reversed, with $10 costs and disbursements.