Mayor of New York v. Genet

Daniels, J.: The Code allows an attachment to be issued against the debtor’s •property in an action on contract for the recovery of money, whenever it shall appear by the affidavit on which the application may be made, that a cause of action exists, and the defendant is not a resident of the State. The affidavit is not required to state in positive terms that he is not a resident of the State; it is sufficient that the fact appears by the affidavit (Code, § 229); and that may as clearly be the case, when the conclusion is the only consistent one which can be drawn from the facts set forth in it, as it would be from a positive statement of the fact itself. What the law requires is, that the fact shall appear by the affidavit prodúced [488] on the creditor’s behalf; and it does so appear whenever the circumstances set forth are consistent with no other rational conclusion-.' The affidavit in this case, although very imperfectly and in artistically drawn, shows that the defendant was tried and convicted, in December, 1873, of the offense of obtaining a portion of the money sued for, by means of false pretenses; that, shortly after his conviction, and before the time fixed for him to receive sentence, he escaped from the custody of the sheriff of the city and county of New York and absconded; and, though the most strenuous efforts have since been made to discover his whereabouts, he still continues concealed. The defendant had been convicted of a grave crime about three months before the attachment was issued, and, to avoid sentence and punishment, escaped from the officer having him in custody, and has ever since remained a fugitive from justice, successfully eluding the efforts of the officers to discover his place of concealment. The plain and reasonable inference indicated and supported by these circumstances, is, that he at once left the State, in order to place himself beyond the control and power of its officers. Safety could be secured in no other manner; and that being the defendant’s object, he would be inclined to attain it in that way, and as expeditiously as circumstances would permit. The supposition that he could remain within the State and be discovered by no one, is incredible, in view of the exertions made to find him. The natural impulse prompting his flight would be at once to place himself out of its limits, and that he must be presumed to have done as soon as circumstances , allowed it to be accomplished. And, for the same reasons, it cannot be plausibly supposed that he has ever, since then, returned within its borders. From the time of his escape from the officers, it is to. be presumed he has been a fugitive in some foreign State, for that alone could furnish him the security sought by him against their vigilance and efforts to recapture him. And it is not to be supposed that his absence from the State is intended to be voluntarily abridged. The motive that led to his flight will induce him to continue his residence abroad indefinitely, for in no other, way can he protect himself from the punishment due to his crime. [489] These facts and conclusions, which appear by the affidavit on which the attachment was issued, are clearly sufficient to show that the defendant was not a resident of the State when the attachment was issued. . The fact that his family may continue to reside within this State, and that his home or domicile may be here, is not enough, under the circumstances shown, to render him a resident of the State; for a person may have his home or domicile in this State, and be -at the same time a resident of another; and, when that is the case, he is subject to the attachment laws as a non-resident debtor. The domicile is the habitation fixed in any place with an intention of always staying there, while simple residence is much more temporary in its character. These subjects were fully examined in the case of Thompson. (Reported in 1 Wend., 43.) His domicile seems to have been in this city. He left it partly on business and partly on pleasure, and remained away until an attachment was issued against him as a non-resident debtor. In delivering his opinion in that case Savage, C. J., said : “ It appears to me, the object of the statute was to authorize creditors to prosecute for their debts when their debtors were abroad; and whether their absence from this State is permanent or temporary, whether it is voluntary or involuntary, the reason for giving this remedy to the creditor is the same. * * * The question, I think, is, where was his actual residence, not his domicile. * * * The reason why this remedy is given against the property of debtors resident abroad, is equally applicable, whether the debtor is absent permanently or temporarily. No length of residence, without the intention of remaining, constitutes domicile. A debtor, therefore, by residing abroad, without declaring an intention to remain, might prevent his creditors from ever collecting their debts.” (Id., 45, 46.) The same principle was applied to the case of a debtor who had been absent from this State, from May, 1836, to March, 1837, when he returned on a visit to his family and was arrested as a non-resident. Though his domicile was in this State, it was held, under the circumstances, that his residence was out of it, and for that reason his arrest was sustained. (Frost v. Brisbin, 19 Wend., 11.) And both these.cases have since been approved by the Court of Appeals in Haggart v. Morgan (1 Seld., 423), where the property of the defendant was held liable to an [490] attachment as a non-resident of this State, upon a mere absence of three years in New Orleans, where he was necessarily detained in attendance upon a lawsuit. The attachment in the present case was issued under a similar provision of the law to those before the courts in the other cases, and it was properly allowed under the construction which they maintain. While it would have been more formal if the affidavit had in plain terms stated the fact of the defendant’s non-residence, that was not indispensably requisite, as long as the circumstances disclosed pointed in the ' most unmistakable manner to that conclusion. The length of absence cannot be important when it appears, as it does in this case, to have been accompanied with a design of remaining beyond the limits of the State. When he left the State with that intention he became a non-resident, and liable to have his property seized by attachment. It sufficiently appeared that a cause of action on contract for the recovery of money existed in the plaintiff’s favor, although the precise amount of the demand was not clearly defined. The affidavit was hurriedly and most carelessly drawn. That is entirely apparent from its statements and the manner in which they were made. But the public interests should not be jeopardized by dismissing the proceedings in order to secure their correction, as long as the facts required for their support can be reasonably gathered from the affidavit produced. The order should be affirmed, with ten dollars costs besides disbursements. Brady, J.: Although it may be, that it does not appear that the defendant in this action fled from the jurisdiction of this court to avoid the service of civil process, it is not denied that he left for the purpose of preventing the consequences of his conviction for a criminal offense. The effect of such an act must be to deprive the person committing it of his character as a resident. He places himself designedly beyond the reach of the power of the State by leaving its territory, and in terror of its laws. The presumption arising from that eircumstanqe, in reference at least to the exercise of jurisdiction over his property, is, that he does not intend to return. It is not susceptible of any other conclusion consistent with the object [491] and intent of his flight. He abandons deliberately his residence. It is an unqualified, unconditional act, and one which, as the decision of this court * and the Court of Appeals show, deprived him of the right to review on exceptions the trial by which he was convicted. When a man thus conducts himself, he waives acquired rights which depend upon his presence within the State, or circumstances which warrant its presumption, and is to be treated as if he were not present, and had no rights founded upon that legal attitude. He became, in other words, to all intents and purposes, for the enforcement of remedies, a non-resident of this State. I agree with Justice Daniels that the order should be affirmed. Footnotes [*] See Matter of Genet, 1 Hun, 293 — [Rep.].