American Surety Co. v. Cosgrove

40 Misc. 262, 81 N.Y.S. 945

Opinion

Bischoff, J.

The issuance of execution against the defendant’s property to the county of Chemung, as the place where he at the time resided, is sought to be justified solely upon the fact that the defendant was within that county as a prisoner in the Elmira Reformatory, whither he was sent upon his conviction of a crime. Ooncededly, the last place of the defendant’s sojourn within the State was the city of Hew York, and it is impossible to hold that, for the purposes of an execution against his person (Oode Civ. Pro., § 1489), he “ resided ” where he was imprisoned. Whether the word “ residence ” be taken in the sense of domicile or of abode, it implies a place where the party is situated through choice, and where, in some conceivable matter, "his personal belongings would be the more readily found; and it has been distinctly ruled that neither in its legal nor in its popular meaning is the word “ residence ” satisfied by an incarceration in any particular place. Grant v. Dalliber, 11 Conn. 234.

There was an absolute failure of compliance with section 1489 of the Oode of Civil Procedure in that, before the issuance of execution against the person of the defendant, no execution against his property had been issued to the county of his residence. The execution against the defendant’s person should therefore be vacated and he be given his liberty.

Motion granted, with costs.