Rosenzweig v. Wood

63 N.Y.S. 447 | N.Y. Sup. Ct. | 1900

Gildersleeve, J.

The plaintiff obtained a warrant of attachment against the defendant on the ground that the latter was a nonresident of this State. The defendant moves to set aside the attachment for the reason that she is a resident of this city, and was at the time the attachment was obtained, and has been ever since July, 1898, and that her husband has also been a resident of this city since May, 1899. The defendant introduces a number of affidavits showing that defendant lived at Ho. 309 West Twenty-second street in this city, from July, 1898, to May, 1899, and at Ho. 203 West Twenty-third street in this city, since May, 1899. The plaintiff introduces a number of instruments, executed by defendant, in which her address is given as being Chicago. The defendant replies that these documents were prepared by plaintiff’s assignor, and that the defendant executed them without regarding the address, and she affirms that she never authorized said assignor to give her address as Chicago. It is admitted that previous to July, 1898, she did reside in Chicago, but, as I have said, she claims and swears positively that she left Chicago forever in July, 1898, and that her husband, who had remained behind to settle up some matters, followed her to Hew York in May, 1899, with the purpose of taking his permanent residence here, and that both defendant and her husband have lived here ever since. Defendant further says that she may have stated that her residence was Chicago between July, 1898, and May, 1899, although at that time she was actually living in Hew York, and that her reason for so stating was that she supposed her legal residence was with her husband, who did not leave Chicago until May, 1899. The allegations of the defendant are strongly corroborated by several other affidavits, handed up on this motion. The attachment was issued on December 1, 1899. The rule is that the right cf attachment should be strictly construed in favor of the party against whom it is obtained. Penoyar v. Kelsey, 150 N. Y. 80. In that case, the court, by Vann, J., use these words, viz.: Owing to the statutory origin and harsh nature of this remedy the section in question should be construed, in accordance with the general rule applicable to statutes in derogation of the common law, strictly in favor of those against whom it may be employed.” But, even if the defendant has a legal domicile in Illinois, she is not, under the proofs here submitted, a nonresident of this State within the meaning of section 636 of the Code. In the case of Hanover Nat Bank v. Stebbins, 69 Hun, 308, the former General Term of this department use this language, viz.: “ 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 all the time since 1891 an intention to return and resume housekeeping with his family in this city, would he sufficient to constitute a domicile within this State. But the word ‘ residence/ as used in section 636 of the Code, means the abode or place where one actually lives, and not one’s legal domicile. In other words, a reading of this section will show that it was intended to supply a method for the collection 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 allows the use ■of the process in rem, when process in personam could not be served.” It is very clear that the defendant was actually living in Hew York at the time the attachment was obtained, no matter what property she may have left in Chicago or what her intention as to returning there may have been. In Waples on Attachments (at pp. 34, 35) we find the following, viz.: “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 had no abode or home Avithin 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.” It is very true, as urged by the plaintiff, that an attachment should not be vacated, where the papers, on which it was granted, are sufficient, and the evidence, given in support of it, is fairly preponderating. Walton v. Chadwick, 6 Misc. Rep. 293; 26 N. Y. Supp. 789. But, in the case at bar, it .seems to me that the preponderance of evidence is in favor of defendant’s contention that she is not a nonresident. The motion must be granted and the attachment vacated, with ten dollars costs to abide the event.

Motion granted and attachment vacated, with ten dollars costs to abide event.