McKinlay v. Fowler

New York Supreme Court

McKinlay v. Fowler

67 How. Pr. 388

DecidedJuly 15, 1884

StatusPublished

This text of 67 How. Pr. 388 (McKinlay v. Fowler) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKinlay v. Fowler, 67 How. Pr. 388 (N.Y. Super. Ct. 1884).

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Opinion

Westbrook, J.

A motion is made in behalf of Anderson Fowler, one of defendants, to vacate attachment on two grounds: First. That Anderson Fowler is a resident of thp city of Few York ; and secondly. That property attached is the property of Frank Clifton & Co., and not of the defendants.

The business of the defendants was conducted at Chicago, and for a part of the time, at least, Anderson Fowler resided there, though his domicile was in the city of New York. By the Code (sec. 636) an attachment issues when “ the defendant is * * * not a resident of the state.” The place of business of a firm, at which its operations are carried on, and where the partners are, either continually or at times, to manage the business, can be as properly, for the purposes of attachment proceedings, called the residence of each of the partners, as a county through which a railroad passes can be called the residence of a corporation to control the place of trial, though its principal office may be located elsewhere. Unless this construction be given to the statute relating to attachments, this case well illustrates how inoperative they would become to secure in many cases the relief they were designed to give. The Matter of Thompson (1 Wend., 43), in which it was held, “ the right to sue out an attachment does not depend upon a change of domicile of the debtor,” is exactly applicable to this case.

The ownership of the property attached affords no ground to vacate the attachment. If Frank Clifton & Co. own the goods seized they can sue the sheriff for taking them, or they may, under sections 657 and 658 of the Code, have the title tried by sheriff’s jury. The provision, however, in section 658, that the plaintiff may still hold the property by indemnifying the sheriff, though the verdict of the jury is in favor of the claimant, shows that a remedy sought by motion ought not to prevail. The motion to vacate the attachment is denied, with ten dollars costs.

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Westbrook, J.

A motion is made in behalf of Anderson Fowler, one of defendants, to vacate attachment on two grounds: First. That Anderson Fowler is a resident of thp city of Few York ; and secondly. That property attached is the property of Frank Clifton & Co., and not of the defendants.

The business of the defendants was conducted at Chicago, and for a part of the time, at least, Anderson Fowler resided there, though his domicile was in the city of New York. By the Code (sec. 636) an attachment issues when “ the defendant is * * * not a resident of the state.” The place of business of a firm, at which its operations are carried on, and where the partners are, either continually or at times, to manage the business, can be as properly, for the purposes of attachment proceedings, called the residence of each of the partners, as a county through which a railroad passes can be called the residence of a corporation to control the place of trial, though its principal office may be located elsewhere. Unless this construction be given to the statute relating to attachments, this case well illustrates how inoperative they would become to secure in many cases the relief they were designed to give. The Matter of Thompson (1 Wend., 43), in which it was held, “ the right to sue out an attachment does not depend upon a change of domicile of the debtor,” is exactly applicable to this case.

The ownership of the property attached affords no ground to vacate the attachment. If Frank Clifton & Co. own the goods seized they can sue the sheriff for taking them, or they may, under sections 657 and 658 of the Code, have the title tried by sheriff’s jury. The provision, however, in section 658, that the plaintiff may still hold the property by indemnifying the sheriff, though the verdict of the jury is in favor of the claimant, shows that a remedy sought by motion ought not to prevail. The motion to vacate the attachment is denied, with ten dollars costs.

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Bluebook (online)

67 How. Pr. 388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinlay-v-fowler-nysupct-1884.

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