
    The Hotel Touraine, Incorporated, Respondent, v. Charles B. Waite, Appellant.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Attachment — Affidavit to obtain attachment — Sufficiency of affidavit under nonresident or absconding debtor’s act.
    Municipal Courts: Procedure — Attachment — Vacation of attachment — Defendant not served with process: Review — Denial of motion to vacate attachment.
    To authorize a writ of attachment in the Municipal Court of the city of New York, upon the ground that the defendant keeps himself concealed to avoid service of the summons, it must appear from the papers that the defendant is a resident of the State; and, where that does not appear in the papers upon which the warrant of attachment was granted, the denial of the motion of the defendant to vacate the attachment, where the defendant was not served with process and appears only for the purpose of the motion, is error.
    Appeal by the defendant from a judgment and order of the Municipal Court of the city of New York, first district, borough of Manhattan.
    
      George Tompkins, for appellant.
    Thompson & Salisbury, for respondent.
   MacLean, J.

The defendant appeals from the judgment rendered herein in favor' of the plaintiff, in an action to recover rent alleged to be due pursuant to agreement, and from an order indorsed on the original papers herein, denying the motion to vacate the writ of attachment issued in this action. Iff either summons nor notice of entry of judgment has ever been served personally upon the defendant, who appeared only for the purpose of the motion. The judgment is, therefore, appealable (Dixon v. Carrucci, 49 Misc. Rep. 222), and likewise the order; and, it not appearing from the original papers upon which the warrant of attachment was issued whether the defendant is or is not a resident of the State, the denial of the motion to vacate the warrant was error, as, by subdivision 2 of section 74 of the Municipal Court Act, it must appear that the defendant is a resident to entitle the plaintiff to a warrant on the ground that the defendant keeps himself concealed to avoid service of the summons. The order must, therefore, be reversed, and the warrant vacated, as also the judgment; for the property of the defendant is no longer duly attached, a prerequisite to the hearing and determination of an action wherein the defendant has not appeared and the summons has not been personally served upon him. Mnn. Ct. Act, § 91. "

Gildersleeve and Seabury JJ., concur.

Judgment and order reversed with costs, and attachment vacated.  