
    SUPREME COURT.
    John D. McKinlay and others agt. Anderson Fowler and others.
    
      Attachment—What constitutes residence for the purposes of— Gode of Givil Procedure, section 636.
    The presumption is that a man resides where his family and house are.
    One having his domicile in this state may, by absence therefrom in another state, become a non-resident within section 636 of the Code, relating to attachments.
    A firm as such cannot be said to have a residence. It is the individual members who have residences (Reversing 8. G., 67 Sow., 388).
    
      
      Third Department, General Term, January, 1885.
    
      Before Learned, P. J., Bookes and Landon, JJ.
    
    Appeal from an order of the special term refusing to vacate an attachment (Reported below, 67 How. Pr., 388).
    The defendants, five in number, were a firm doing business in Chicago, 111. An attachment issued against the defendants as non-residents. The defendant Anderson Fowler on his own behalf moved to vacate the attachment on two grounds:
    
      First. That the property seized by the sheriff was not the property of the defendants, but of Frank Clifton & Co., of which concern the defendant Anderson Fowler was one.
    
      Second. That the defendant Anderson Fowler was a resident of the state.
    The motion was denied and he appealed to this court. Other facts are stated in the opinion.
    
      Simon W, Rosendale, for appellant:
    I. The attachment against the interest of Anderson Fowler in the property attached is valid until set aside (Smith agt. Oser, 42 N. Y., 132; Staats agt. Buston, 73 N. Y., 264). One defendant copartner can move to vacate (Code, seo. 682).
    II. The defendant, Anderson Fowler, was not a non-resident of this state ( Wallace agt. Castle, 68 N. Y., 370; Chaine agt. Wilson, 1 Bosw., 673, 685; Murphy agt. Baldwin, 41 How., 270; Wade agt. Matheson, 4 Lans., 158, 161). The plaintiff did not know the facts stated in his affidavit, consequently there could be no preponderance of evidence (O'Reilly agt. Freel, 37 How., 272).
    III. The cases of Thompson (1 Wend., 43), Frost agt. Bustin (19 Wend., 11), and Haggart agt. Morgan (5 N. Y., 422), present a different state of facts than there is in this case (See Mayor agt. Genet, 4 Hun, 487; 63 N. Y., 646). Foster agt. Newland (21 Wend., 94) is no precedent for holding that the defendant cannot show where his residence was. He was not estopped.
    
      
      Edward J. Meegan, for respondent:
    I. The attachment was properly granted (Code, secs.635, 636). (a.) An attachment is not the commencement of an action, but merely an auxiliary, and papers should not be judged with the same strictness as if sole ground of jurisdiction (Lumkin agt. Douglass, 27 Hun, 517; Furman agt. Walter, 13 How. Pr., 348). (b.) The court will not pass on the merits of the action on motion to vacate an attachment (Iselin agt. Port Royal R. R. Co., 6 Weekly Dig., 130.) (c.) On motion to vacate an attachment, if affidavits are used by the moving party, the plaintiffs may sustain the attachment by new and additional affidavits on any ground recited in the warrant of attachment (Code of Civil Pro., sec. 683; Godfrey agt. Godfrey, 75 N. Y., 434; N. Y. and Erie Bank agt. Codd, 11 How. Pr., 221; Rowles agt. Hoare, 61 Barb., 266).
    II. Whether or not the title to the goods attached be in. the defendants, the point was not available to the defendant Anderson Fowler on the motion to vacate, nor is it on this appeal, (a.) Where a dispute occurs as to the title of goods attached, a defendant claiming that some one else, and not himself, is the owner, and the plaintiff averring title in the defendant, the court should not try and determine the question summarily on affidavits. The plaintiffs should be permitted to have a jury pass on it. The party whose goods are wrongfully taken has always an ample and efficient remedy at law. (b.) The rule is as old as attachment practice itself, “ that the allegation that the defendant in an attachment proceeding was not the owner of the property attached is not good matter for a plea in abatement of the suit ” (King agt. Bucks, 11 Alabama, 217; Sims agt. Jacobson, 51 id., 186). (c.) The Code anticipated eases like the present and pointed out the procedure as follows: “ Sec. 657. If goods or effects, other than a vessel, attached as the property of the defendant, are claimed by or in behalf of another person, as his property, the sheriff may, in his discretion, impannel a jury to try the validity of the claim.” “ Sec. 658. If, by their inquisition, the jury find the property of the goods or effects to have been in the claimant at the time of the levy, the sheriff must forthwith deliver them to him or his agent, unless the plaintiff gives an undertaking, with sufficient sureties, to indemnify the sheriff for the detention thereof. If the undertaking is given, the sheriff must detain the goods or effects as the property of the defendant.” “ See. 659. If the property is found to be in the defendant, the finding does not prejudice the right of the claimant to bring an action to recover the goods or effects or the value thereof.” (d.) The foregoing provisions of the Code are copied substantially from the Revised Statutes (2 Edm. Stat., secs. 10,11 and 12, p. 5; Laws of 1841, chap. 297). (e.) In Batcheller agt. Schuyler (3 Hill, 386), arising under the Revised Statutes, it was held that where goods seized on an attachment against an absconding debtor by a third person, the finding of a jury summoned to try the validity of the claim is not conclusive upon the parties, and hence the sheriff may refuse to deliver the goods to the claimant, though the finding be in his favor, and no bond of indemnity be tendered by the attaching creditor; the only consequence of such refusal is, that the sheriff assumes the burthen of showing, in an action against him by the claimant, that the goods are the property of the debtor, (fi) One claiming title to property sold under an attachment against another, has no claim or right to the proceeds in the hands of the sheriff, but the same must be applied upon the attachment (Rodrigues agt. Treimo, 54 Tex., 198). (g.) If a defendant conceal property to which he has no title, he cannot, to defeat an attachment obtained by reason of such concealing, show ownership of that property in a third person (Treadwell agt. Lawlor, 15 How. Pr., 8).
    III. The Code authorizes an attachment against non-residents (Sec. 636). There is, however, a broad and clear distinction in the law between a residence and a domicile, so that .although the actual domicile of Anderson Fowler may have been in the city of New York, yet he must, under the facts in this case, for attachment purposes, be deemed a non-resident of the state (Matter of Thompson, 1 Wend., 44). (a.) An examination of the authorities is invited. Chief Judge Savage says: “ The question I think is, where was his actual residence, not his domicile” (1 Wend., supra) ? A person having his domicile here, who carries on business out of this state and personally superintends the same, is not a resident of the state. The domicile of a party may be in one state and his actual residence in another (Frost agt. Brisben, 19 Wend., 11). The court of appeals formulates the doctrine thus: “ A person may be a non-resident of the state, within the meaning of the statute relative to non-resident debtors, while his domicile continues within the state. Actual non-residence, without regard to the domicile of the debtor, is what is contemplated by the statute ” (Haggart agt. Morgan, 5 N. Y., 422 ; Towner agt. Church, 2 Abb., 299 ; Burrill agt. Jewitt, 2 Rob., 701; Hurlburt agt. Seeley, 11 How. Pr., 512, Roosevelt, J. ; Dupuy agt. Pemberton, 53 N. Y., 561 et seg.). These cases are not in conflict, but harmonize with a class of cases which hold that one having a fixed domicile in another state, but doing business in this state, dwelling part of the time here, is not a resident within the meaning of our attachment laws (Murphy agt. Baldwin, 11 Abb. [N. S.], 407; S. C., 41 How. Pr., 270, and cases cited ; Barry agt. Bockover, 6 Abb., 374; Greaton agt. Morgan, 8 Abb., 64; Bache agt. Lawrence, 17 How. Pr., 554; Houghton agt. Ault, 16 How. Pr., 71 ; Perrine agt. Evans, 35 N. J. L., 221; Stout agt. Leonard, 37 N. J. L., 495; Baldwin agt. Flagg, 43 N. J. L., 495). In the first class of cases it would be inadmissible to have a person domiciled here evade his creditors by leaving the state even temporarily, and in the second class the debtor owes no allegiance to the state, and our creditors could only get full protection by holding him to be a nonresident (Kneeland on Att., sec. 189).
    IY. Within the foregoing cases the attachment can be sustained against Anderson Fowler, (a.) The domicile and residence of the firm of Fowler Brothers was in Chicago, 111. All the partners were there transacting the business of the firm, Anderson Fowler at least part of the time. The cause of action herein was a joint liability against the firm. The remedy against the firm should depend upon where it and the major part of its members dwelt, and where all met to consult, transact and forward the business. It is no hardship to apply to a foreign firm, in reference to its own dealings, a rule recognizing its existence out of the state. Why cannot a firm acquire a legal residence as well as a corporation or an individual ; and when non-resident, what injustice is there in charging all the partners who are enjoying the profits of the combination with the consequence of non-residence ? (5.) To illustrate, in the case of railroad corporations: Each county through which a railroad passes is considered its place of residence for the purposes of venue (Pond agt. H. R. R. R. Co., 17 How. Pr., 543); for highway labor (The People agt. H. R. R. R. Co., 31 Barb., 138); for taxation (The People agt. Fredericks, 48 Barb., 173; 48 N. Y., 70), and as to the jurisdiction of justices’ courts (Belden agt. N. Y. and H. R. R. R. Co., 15 How. Pr., 17; Sherwood agt. The S. and W. R. R. Co., 15 Barb., 650). (c.) Take the case'of joint debtors sued in a local city court, process being served only on one defendant, judgment may be taken against all as joint debtors, although some of them reside beyond the jurisdiction of the court (Hoag agt. Lamont, 60 N. Y., 96). (d.) The existence and liabilities of a foreign copartnership, depend on the law of the country in which it is formed- and exists. ( Whart. Confl. of Laws [2d ed.], sec. 470; King agt. Sarria, 69 N. Y., 25, 32). (e.) If three partners (two of whom reside abroad and one in England) be sued for a partnership debt, and the partner resident in England appear to the action, but refuse to appear for the partner’s resident abroad, the sheriff, under a distringas against the two partners, may take partnership effects, though paid for by the partner resident in England alone, to whom the partnership was largely indebted, and the court will not relieve him against such distress (Morley agt. Stromborn, 3 Bos. & Pul., 254). (f.) The defendant Anderson Fowler was, in fact, a non -resident of the state when the attachment issued herein. He had not been in the state for some months prior thereto, as all the evidence in the case shows. He told Henry James he was a resident of Chicago, 111. His affidavit in this case was made and verified in Chicago. He was in Chicago during the month of March. He could not have been served in this state with process during 1884, anterior to March twenty-sixth. In his affidavit he does not make the situation clear, as was his duty if he meant to conceal nothing. He fails to state the time or times when he was within this state, courting and enjoying the sunshine of his domicile; he contents himself with the general statement that he was “generally and commonly to be found in the said city of New York.” It was his duty to be specific as to details, as the facts were peculiarly within his own knowledge, in order to overcome the positive and direct testimony on the part of the plaintiffs. Besides he was confronted with an affidavit that he could not be found within th.e state, and that during the month of March he was seen by, and conversed with, parties in Chicago, 111. He maintains, however, an ominous and suspicious silence as to details. {g.) The defendant, Anderson Fowler, can gain nothing by having the attachment vacated as to himself. The attachment must stand as against the other four partners, and under it the sheriff rightfully took possession of the property and lawfully holds it, and when execution issues in this action, may sell it and deliver it to purchaser at sale (Marshall agt. McGregor, 59 Barb., 519 ; Smith agt. Orser, 42 N. Y., 132). If one of two copartners is a non-resident, this is held sufficient to authorize an attachment against him, leviable upon his interest in the partnership property (McHenry agt. Cauthorne, 5 Heisk. [Tenn.], 508). So, if one partner should fraudulently transfer his property, even to his copartner 
      (Hirsch agt. Hutchinson, 64 How. Pr., 366; S. C., 3 Civil Pro. Rep., 106). Section 693 of the Code provides: “ If a warrant of attachment is levied upon the interest of one or more partners, in goods or chattels of a partnership, the other partners, who are not defendants in the action, or any of them, may at any time before final judgment apply * * * for an order to discharge the attachment as to that interest.”
   Learned, P. J.

The simple question is, whether Anderson Fowler at the time of issuing the attachment was “not a resident of the state” {Code, sec. 636, sub. 2).

The affidavit of Henry Davis states that Fowler has been openly and continuously a resident of the city of New York;, that his residence was Ho. 60 East Sixty-eighth street; that he is generally and commonly to be found in that city; that the city directories of New York and of Chicago give his residence as of New York; that his family have resided there for many years past. Fowler’s own affidavit is to the same effect, so are the affidavits of Clifton and of Page.

On the part of the plaintiff there is the affidavit on which the attachment was obtained, that neither of defendants reside in the state of New York, but in Chicago. There is further affidavit of plaintiff that the firm of Fowler Brothers has a fixed residence and domicile in Chicago, and that such is the understanding of the trade ; that bill-heads of the firm are headed Chicago, and letters dated there, &c.

An affidavit of James that defendants stated that they resided in Chicago, and that he cannot be mistaken, that this statement was made by Anderson Fowler. A further affidavit of plaintiff that defendants’ names appear in the directory of Chicago, and that they cannot be found in this state, and that they were then in Chicago.

There is no doubt for certain purposes, for instance for succession, a distinction between domicile and residence (Dupuy agt. Pemberton, 53 N. Y., 556). One may go abroad and reside abroad for instance, with no intention of changing his domicile, and he may thus retain his domicile in this country while residing in another. But that distinction can hardly be said to arise here.

The evidence shows that Fowler’s domicile and residence were in New York city. There he had his house and there were his family. Absences on business to Chicago, though frequent, would not necessarily make him a resident of Chicago. It is undoubtedly true that he might make such a stay in Chicago as would constitute residence there, though Iiis domicile were here (Haggart agt. Morgan, 1 Seld., 422). This is seen in Towner agt. Church (2 Abb., 299), where the' ■defendant’s family resided in another state and he spent his nights and Sundays there with them, but carried on business :in New York, being in that city during business hours. He was held not to be a non-resident.

But in the present case there is an absence of those facts which would show that Fowler’s residence was in Chicago. True the firm did their business in that city; but the firm as such cannot be said to have a residence. It is the individual members who have residences; and unless it be shown that Fowler did more than take occasional visits to Chicago, we .have no facts which shake the presumption that he resides where his family and his house are.

We think that the weight of the evidence shows unquestionably that Fowler was a resident of this state.

Order reversed, with ten dollars costs, and printing, disbursements and attachment vacated as to Anderson Fowler, -with ten dollars costs.  