Delsalse v. Cassidy — 56 N.Y.S. 382

Majority

p. 382

DELSALSE et al. v. CASSIDY.

(City Court of New York, General Term.

March 6, 1899.)

Headnote

Supplementary Proceedings—Affidavit of Nonresidence.

In supplementary proceedings, a mere statement of the debtor, in his affidavit, that he does not reside, and has not within five years last past resided, in New York, is a mere expression of his opinion as to his non-residence, and is insufficient.

Appeal from special term.

Action by F. Delsalse and others against Martin Cassidy. Judgment for plaintiffs in the matter of proceedings supplementary to execution. Defendant appeals.

Affirmed.

Argued before F1TZSIM02ntS, C. J., and COMAN and SOHUCH-MANT, JJ.

Frank J. McBarron, for appellant.

Blumenstiel & Hirsch, for respondents.

The question of the debtor’s residence was a question of fact. It was his duty to prove that he was not a resident of this city. His mere denial, as he alleges it in his affidavit, that he does not now (December 5, 1898) reside, and has not within the past five years last past resided, in the city or county of New York, was not sufficient. It was the statement of a conclusion of law. It was a mere expression of his opinion as to his nonresidence, without stating the facts upon which his conclusion was based. Of course, the court was not bound to accept as conclusive his opinion as to his nonresidence, nor was it bound to accept his conclusion of law. The order appealed from must be affirmed, particularly in view of the fact that he failed and refused to supply further evidence as to his place of residence, although he was invited and requested by the special term justice to do so.

Order affirmed, with costs.