Bache v. Lawrence & Tuthill — 17 How. Pr. 554

Majority

p. 554

SUPREME COURT.

Bache agt. Lawrence & Tuthill.

Headnote

A defendant whose domicil is in Hew-Jersey, where he spends all his time ex- ' cept during the business hours of the day, is not a resident of this state, though his business is in Hew-York, and he is daily and habitually in Hew-York from seven o’clock in the morning to seven o’clock in the evening, and though he keeps his bank account in Hew-York, and his property may be attached.

New- York Special Term,

December, 1857.

Motioh to set aside an attachment. The defendant Tuthill is a member of a mercantile firm whose place of business is in the city of Hew-York, where they keep their bank account, and where they transact all their business. The defendant’s family reside in Hoboken, Hew-Jersey. His daily habit is to leave Hoboken at seven o’clock in the morning, and to go directly to Hew-York, where he remains at the store of the firm of which he is a member .'till seven o’clock in the evening, when he returns to Hoboken. He spends his Sundays in Hoboken. The plaintiff had obtained a warrant of attachment against the property of the defendant, on the ground that he was not a resident of the state. On the foregoing facts, a motion was made to set aside the attachment.

II. M. Whitehead, for the motion, cited Towner agt. Church (2 Abbott, 299).

James B. Brinsmade opposed the motion, upon the following grounds:

1. The syllabus of the reporter in the case of Towner agt. Church does not correctly state the decision of the court. It is the mere obiter dictum of Justice Cowles. In that case, the defendant was held, by the court, to be a resident because he kept rooms in the city of Hew-York, where he lodged every night except Saturday and Sunday nights, in addition to his making Hew-York his sole place of business.

p. 555

2. In Towner agt. Church it was said, that if the converse of the facts were true, the defendant would clearly not be a resident ; ergo, he must be a resident. In the case in question, if the converse of the facts were true, the defendant would clearly be a resident; ergo, he must be not a resident, if the logic be correct.

3. Keeping a bank account in Hew-York does not make one a resident. Bank accounts are kept by merchants where they can obtain the readiest accommodations in the way of discounts. Hundreds of Hew-York merchants keep bank accounts in Jersey City, and do not themselves cross the ferry once a month.

4. The daily habit of coming to Hew-York to buy and sell dry goods does not make one a resident. If it did, there would have to be a fixed rule as to the number of days he must come and the number of hours he must remain. The word resident implies, necessarily, an abode, a dwelling.

5. It is true that one may have his domicil in one place and his residence in another, but that is only when he does not abide, dwell, or live at his domicil.

6. The object of the Code is not merely to furnish a means of commencing an action, where it cannot be commenced by personal service of the summons, for,

1st. In the majority of cases where an attachment is issued, the defendant is actually served within the state, and there is no provision that the attachment shall be set aside in case the summons is or can be served, as there would be if the object of the statute were as supposed.

2d. In the same section of the Code (229) the same process is given, in .the same terms, against a foreign corporation, and the foreign corporation and the “ not a resident” are exactly on the same footing as to the object of the statute. How, it is notorious that, as a general rule, a foreign corporation never has property within this state, unless it has an officer or managing agent here to take charge of it; and the service upon such officer or agent is good service on the corporation. But,

p. 556

7. It is respectfully submitted that the object of the Code is not in this case a legitimate subject of inquiry. Where there is no ambiguity in the statute, it is not within the province of the court to speculate about the intentions of the legislature.

The motion to set aside the attachment is denied.