Towner v. Church

2 Abb. Pr. 299

• Court: New York Supreme Court
• Decided: November 15, 1855
• Status: Published

Opinions

Mitchell, J.

The affidavits show that the defendant had resided with his family in this city, and done business here for a number of years, until about May last, when he and his family removed to New Haven, in Connecticut; and that after that he and they called that his residence. They also show that he still continued to keep rooms in this city, where he boarded and lodged all the week, except that on Saturday he left this city and went to New Haven, where he remained with his family until Monday morning, when he returned again to this city; and that he remained here the rest of the week, day and night, attending to business. It is very certain that if the converse of this case were proved, and it were shown that Mr. Church was never here except on Saturday evening, early on Monday morning, and on Sundays, it would be held that he was not a resident of this State in the sense of our attachment laws; to be such a resident his abiding here must be such as to subject him readily to the process of our courts; his regular and continued absence in the case supposed, except at the exact periods when it would be unlawful to serve process on him or difficult to do so, would be deemed to exclude him from the rights of a resident, so far as those laws are concerned. It would follow that courts administering law in Connecticut on the same principle as we do here, would hold him a non-resident of that State so far as attachment laws are concerned, and a resident of tbis State. On the same principle, and to be consistent with the adjudications of our courts, we must hold that the defendant is a resident of this State and not of Connecticut, within the meaning of our attachment laws. Notwithstanding this, the defendant’s residence, so far as the right to vote is concerned, or for the purposes of administration on his estate in case of his decease, may be in Connecticut, and he may properly call himself, for those reasons, a resident of that State. The order refusing to discharge the attachment is reversed without costs, the defendant to stipulate not to bring any action on account of the attachment. This stipulation is proper, as his language, and that of his friends, naturally misled the plaintiff.