In re Marty — 2 Barb. 436

Majority

p. 436

New-York Special Term,

February, 1848.

Edmonds, Justice.

In the matter of Francisco Marty.

Headnote

A non-resident creditor who is only temporarily here, and not domiciled, may sue out an attachment against his debtor who is a non-resident; even upon a debt contracted abroad. And it is not necessary the debtor shall ever have been a resident here.

The case of Ex parte Fitzgerald, (2 Caines, 318,) shown to have been overruled.

It is sufficient for a creditor, in his application for an attachment against a non-resident debtor, to state that the debtor is indebted to him in a specified sum, arising upon contract.

The debtor and Altillio Valtellina were both residents of Havana, and there made a contract with each other, and three

p. 437

others, to establish an opera in the United States. Yaltellina and some of his associates came to the United States, and entered upon the undertaking; which finally failed. He remained in the United States, came to the city of New-York, where he resided several months, and took the preliminary steps to become naturalized. After doing so, he sued out, before one of the judges of the common pleas of New-York, an attachment against Marty as a non-resident; the latter never having been in the United States, on a claim for damages alleged to have arisen from a violation, by Marty, of this contract of partnership. On affidavits showing that Yaltellina was only temporarily in the United States, and not a permanent resident in New-York, an application was made to the judge who issued the attachment, for a supersedeas ; which he refused, on the ground that he had no authority to grant the same. Thereupon a certiorari was sued out, removing all the proceedings into this court. On the coming in of the return,

A. D. Logan, for Marty,

moved for a supersedeas, on the grounds (1.) That the attaching creditor was a non-resident and had no right to sue out the process: (2.) That his claim was not a debt owing within this state ; and (3.) That he had not in his application set out the grounds of his claim, within the fourth section of the act, (2 R. S. 3;) but had merely sworn that Marty was “ indebted to him in the sum of $8000, arising upon contract.”

R. Emmet, contra.

The case of Fitzgerald, (2 Caines, 318,) caused some doubts whether a non-resident creditor could avail himself of the benefit of our laws, authorizing an attachment against a non-resident debtor. But that case has been overruled. In Robbins v. Cooper, (6 John. Ch. Rep. 190,) Chancellor Kent held the contrary. In Ex parte Caldwell, (5 Cowen, 293,) this court say that the 20th section of the statute, must have been overlooked by the court in Fitzgerald's case,

p. 438

and they add that an attachment in favor of a foreign creditor, who had followed his debtor to this country, was expressly authorized by our statute. (1 R. L. 157.) But in Ex parte Schroeder, (6 Cowen, 603,) the court held, that a creditor abroad, not resident nor domiciled here, but only transiently in New-York, could not sue out an attachment against his debtor, being a non-resident, on a contract made abroad. And they express a doubt whether even a resident creditor could proceed by attachment here upon a contract made abroad.

All these cases were before the revised statutes, which made something of an alteration in the law in regard to the matter which makes the distinction between the cases in 5 Cowen and 6 Cowen. The former law required that the person proceeded against, whether as an absconding or as a non-resident debtor, should be “ indebted within this state.” Therefore, in 6 Cowen the attachment, though in favor of a non-resident creditor, was set aside because the debtor was not, and never had been, in this state, and consequently he could not be said to be indebted in this state. But in 5 Cowen, the creditor was also a non-resident, and the debt had also been contracted abroad, but the debtor was concealed in this state, and therefore was indebted in this state. But our revised statutes have omitted the requirement that the debtor should be indebted in this state; and the revisers in their note to that section which gives the attachment to the enumerated creditors, say it is intended to conform to 6 Cowen, 603, “ and to express the meaning of the legislature distinctly as it seems to be understood in 5 Cowen, 293, and the cases there cited.” One of the cases cited is that in 6 John. Ch. Rep. Hence the statute, (2 R. S. 3, § 3,) says, “ such application may be made by any creditor resident within this state or out of it,” which provision the revisers say is § 20 of 1 R. L. 157. That section 20 is, that any creditor residing out of this state shall be deemed a creditor within the act. And this court, in 5 Go'wen, say that that section expressly authorizes a proceeding in favor of a non-resident creditor, on a debt contracted abroad.

It seems to me, then, plainly to be the intention of the statute

p. 439

to authorize a non-resident creditor to sue out an attachment; so that if Valtellina is, as was alleged, only temporarily here, and not domiciled in this state, he may institute these proceedings.

This disposes of the two first objections made in behalf of the debtor. The other one relates to the form of his application. But the statute only requires that he shall state the amount of his claim and the nature of it, so far as to declare whether it arises upon contract or upon a judgment or decree rendered within this state. Those things are set out in this application, and therefore it is sufficient.

There being then, according to the view which I take of this case, no valid objections to these proceedings, they must be remitted to the officer who issued the warrant.