Majority
p. 157NEW YORK GENERAL TERM. May, 1850. Before Edmonds, Justice. Miller v. Burrows.
Headnote
What is the non-residence which authorizes an attachment.A party who formerly resided in another State, and having abandoned that and come to this State, undetermined whether he will settle here or elsewhere, is a non-resident against whom an attachment may issue.
In this and two other cases attachments were taken out against the defendant as a non-resident. It appeared that he liad formerly resided and married in this State, and had then emigrated to Indiana, where he had been engaged in mercantile business, in which he had failed. After his failure he had returned to this State with his family, and lived in his father-in-law’s family, in the city of New York, while he was looking out for an opportunity of again getting into business; and whether he should finally settle in this State, or elsewhere, was undetermined. On this state of facts he moved to discharge the attachment, on the ground that he was not a resident of Indiana, but, if any where, of this State. From an order at Special Term denying the motion, he appealed.
I am of opinion that the decision of the Special Term in these cases was eminently proper. The question is not whether the defendant is a resident of Indiana, but whether he is “not a resident of this State.” The provision of the Code, section 227, authorizes an attachment “ against a defendant who is not a resident of this State.” The defendant was at one time a resident of Indiana, but that residence he has abandoned, and he has returned with his family to this State; but whether he will take up his residence here, or elsewhere, he is yet undetermined; that is to depend upon his
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prospects of getting into business. Until bis mind shall be settled on that point, until he shall come to a determination, and have a fixed place of habitation, with an intention of staying there, he cannot he said to have a residence any where.
Order of Special Term affirmed, with costs.