Gotham National Bank v. Martin

167 A.D. 271, 152 N.Y.S. 654, 1915 N.Y. App. Div. LEXIS 7412

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1915
• Status: Published

Opinion

Hotchkiss, J.:

In the affidavit of plaintiff’s president, verified January 12, 1915, he swore on information and belief that the defendants are non-residents of this State and resided somewhere in France. His information and belief were founded upon statements made to him by one Wormser, to the effect that the latter had been introduced to him by defendant Louis Martin as the manager of his business and as holding his power of attorney; that on January 8, 1915, Wormser had told him that defendant Louis and defendant Louise, his wife, had sailed foi France on April 22, 1914, where they had since been living, and that they had not expressed to him any intention of returning to New York

By the affidavit of one Delenne, an acquaintance of both the defendants, it appeared that they were natives of France, but had resided in New York city for sometime prior to April, 1914; that Louis had been in the restaurant business but that the concern in which he was interested had failed about April, 1914, at which time both defendants had sailed for France, stating to him that they did not know whether they would return or not, and that in fact they had not returned.

It would thus appear that the defendants, under circumstances indicating the absence of any further business interests in this country, had left for their native land more than nine months prior to the date of the affidavits, and at the time of leaving had expressed their doubt as to whether they would ever return. I think within the authorities this is sufficient proof of non-residence. It certainly would have been prior to the amendment to section 636 of the Code in the year 1895,

* to which reference is made in Bodine v. Bodine (79 Misc. Rep. 435), on the authority of which case the court below vacated the attachment. Beferring to that amendment, which provides for an attachment against a resident, who, being an adult, has been continuously without the State for more than six months with-: out designating a person upon whom to serve a summons in his behalf, the court said that if the former decisions (Mayor v. Genet, 4 Hun, 487; affd., 63 N. Y. 646; Hanover Nat. Bank v. Stebbins, 69 Hun, 308, 309, 310; Weitkamp v. Loehr, 53 N. Y. Super. Ct. 79), with respect to what circumstances were evidence of non-residence were still to he recognized as authority, notwithstanding the above amendment, “then every person who leaves the State however temporarily becomes eo instanti a non-resident and subject to attachment and the above provision for attachment of the property of absent residents is vain and foolish. ”

I cánnot concur in this. I think the amendment relates to cases where there is no doubt of the defendant’s continued residence within the State, under which circumstances there necessarily can he no attachment unless there has been an absence of over six months without any designation. The amendment has no application to situations where the evidence justifies the presumption that a former residence in this State has been abandoned and a status of non-residence has come to exist.

The order should be reversed, with ten dollars costs and disbursements, the motion to vacate the attachment denied, with ten dollars costs, and the attachment reinstated.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and attachment reinstated.

See Laws of 1894, chap. 736; Laws of 1895, chap. 578, and Laws of 1899, chap. 598.—[Rep.