Weitkamp v. Loehr — 53 N.Y. Super. Ct. 79

Majority

p. 79

CHRISTIAN WEITKAMP, Respondent, v. FRANCIS LOEHR, Impleaded, &c., Appellant.

Headnote

Attachment—when granted—non-residence defined.

Actual cessation to dwell within the state for an uncertain period, without definite intention as to any fixed time of returning, even though a general intention to return at some time in the future may exist, constitutes non-residence, and warrants an attachment under sections 635 and 636 of the Code.

The above principle applied to the facts of the case at bar, and the attachment upheld.

The distinction between the words “residence” and “ domicile,” as applied to the attachment laws, defined.

Dupuy v. Wentz, 53 N. Y. 556 , distinguished.

Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

Decided March 1, 1886.

Appeal from order denying motion to vacate attachment.

The facts appear in the opinions.

The following opinion was delivered at special term:

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“Ingraham, J.—From the facts as they appear in this application, it is clear that the defendant did not lose his domicile in this state. It is well settled, however, that a person may have a domicile within this state, and at the same time be a resident of another state.

“In Matter of Thompson ( 1 Wend. 43 ), the supreme court stated the distinction, and held that the question is one of actual residence at the time the warrant is issued ; and this case has been approved in Haggart v. Morgan (1 Seld. 423).

“In the case of Mayor v. Genet ( 4 Hun, 487 ), the supreme court held that where a person left the state with the design of remaining beyond the limits of the state, he became a non-resident, and liable to have his property seized by attachment; and in Wallace v. Castle ( 68 N. Y. 370 ), the court of appeals held, that the fact that a person had a place of business in the city of New York was not sufficient to constitute him a resident, so as to exempt him from attachment.

“In Matter of Collins ( 64 How. 65 ), it was held that residence means the act or state of being seated or settled in a place. It imports not only personal presence in a place, but an attachment to it by those acts or habits which express the closest connection between the person and place, as by usually sitting or lying there.

“It appears in this case, from the defendant’s own statement, that about June 25, 1884, the house at whicli he then resided with his family was given up, and his family removed to Milwaukee, with the intention of remaining there for an indefinite period (at any rate until the following October), and then returning to Brooklyn ; that for a considerable portion of the time between said removal and the issuing of the attachment, the defendant was absent in Milwaukee,, or traveling in relation to his business ; that while he was here he boarded at two places in Brooklyn, one of such places being a hotel; that on March 15, defendant left New York city, and was absent from the state until May 34, 1885. During the

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time he was absent it does not appear that the defendant had any place of abode or residence in Brooklyn, or in this state ; no house that he could at that time call his home or residence.

“Nothing appears that would show that defendant intended to retain his residence in Brooklyn, and although the case is a close one, I think that under the rule as stated in the cases above cited, the defendant was not a resident of this state at the time the attachment was granted.

“ The motion to vacate the attachment must therefore be denied, with $10 costs, to abide the event of the action.”

John D. Ahrens and Wm. P. Chambers, for appellant.

Frank J. Dupignac, for respondent.

By the Court.

This is an appeal from an order of this court at special term, denying a motion made on behalf of defendant, Loehr, to vacate an attachment issued against his property, on the ground that he was a non-resident of the state of New York.

The material facts, as stated by the defendants, and uncontroverted, are these:

Defendant Loehr had been, before June, 1884, a commercial traveler for a New York establishment, spending much of his time on the road and outside of the state of New York. He had lived in Brooklyn with his wife and family, and, up to that time, was a resident of the stats of New York. Finding his wife and children ill, as he was advised by his physician, of disease contracted by bad sewerage of the house in which he dwelt, and finding change of air necessary for their recovery, he left the house in which he had dwelt. His wife’s father and mother resided in Milwaukee, and, his wife being then pregnant, he decided to remove her and his family to that city, so that they could have the care of their relatives. It was no part of his or his wife’s intention to reside permanently in Milwaukee, but it was his and her intention

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to return to Brooklyn. They did return to Brooklyn on June 11, 1885. Their absence from the state, in the meantime, is attributed to the illness of defendant’s wife, who was delivered of a child in October, 1884, and the subsequent illness of his and her children.

The defendant Loehr, before he left Brooklyn, put his furniture into a storage house there, for safe keeping until his return. During the absence of his wife and family in Milwaukee, the defendant, on his occasional returns to New York from his journeys, had no permanent dwelling in this state, but stayed temporarily in boarding-houses in Brooklyn.

The attachment was issued in April, 1885, during the absence of the defendant from New York.

There is sufficient evidence, in my opinion, to warrant the conclusion, that in leaving Brooklyn, the defendant had not the intention to seek a domicile outside the state of New York, and that the stay of his wife and family in Milwaukee was not intended by him or her to be permanent, but was transitory, and that, during all their absence from New York, they always had the intention of returning to Brooklyn, at some time in the future not fixed.

The question is not wholly free from doubt, and that doubt has been, to some extent, caused by the failure to distinguish accurately between domicile and residence. These words are often used indifferently. Generally speaking, domicile and residence mean the same thing (Kennedy v. Ryal, 67 N. Y. 379 ). They have, however, at least when used in reference to attachment under the Code, different and distinct meanings.

Residence, combined with intention to remain, constitutes domicile (2 Kent’s Com. 577).

Inhabitancy and residence mean a fixed and permanent abode, a dwelling-house for the time being, as contradistinguished from a mere temporary locality of existence ( 20 Johns. 208 ).

Residence, in attachment laws, generally implies an established abode, fixed permanently for a time, for busi

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ness or other purposes, although there may be an intent existing all the while, to return to the true domicile (Kone v. Cooper, 43 Ark.).

The meaning of the word resident, as used in section 1763 of the Code, was discussed in De Meli v. De Meli, and it was held that a natural born citizen of the United States, who had been for some years dwelling in Dresden, but always stated his residence to be in Hew York, and never had the intention of obtaining a residence anywhere else than in Hew York, had never acquired a foreign residence ; that the residence of a man is changed only by an abandonment of the first place of domicile, with the intention not to return, but to permanently settle in another place (De Meli v. De Meli, 5 Civ. Proc. R. 308).

In Dupuy v. Wurtz ( 53 N. Y. 556 ), the contention was as to the proper execution of a will by a citizen of the state of Hew York, who bad dwelt continuously in Europe for many years. The will was executed in Hice, and according to the laws of Hew York. It was held that the testatrix had not abandoned her original domicile, which continued to be in Hew York.

The question in the case at bar, however, is not as to domicile, with reference to proper execution of a will, but as to residence or non-residence, as the test of the right to attach property of the defendant.

In my opinion, actual cessation to dwell within the state for an uncertain period, without definite intention as to any fixed time of returning, even although a general intention to return at some time in the future may exist, constitutes non-residence, and warrants an issue of an. attachment under sections 635 and 636 of the Code. •

The order appealed from should be affirmed, with $10 costs.

Sedgwick, Oh, J., concurred.

Cases cited

Dupuy v. Wurtz 53 N. Y. 556 N.Y. 1873-11-11 p. 79, p. 83
In re Thompson 1 Wend. 43 N.Y. Sup. Ct. p. 80
Wallace & Sons v. Castle 68 N. Y. 370 N.Y. 1877-02-06 p. 80
Kennedy v. Ryall 67 N. Y. 379 N.Y. 1876-11-28 p. 82
Roosevelt v. Kellogg 20 Johns. 208 N.Y. Sup. Ct. p. 82