
    SUPREME COURT.
    Gustave Heidenbach agt. F. Schland.
    A person, an emigrant, having left for ever his native land, is living in the state of New-York, without any determination to reside anywhere else—where is his residence 1 Most clearly, in the state of New-York.
    
      JVew- York Special Term,
    
    
      May, 1854.
    Motion, by defendant, to set aside attachment.
    
      — —, for defendant.
    
    — —, for plaintiff.
    
   Morris, Justice.

Attachment issued against the property of the defendant, under § 229 of the Code, upon the ground that the defendant was “not a resident of this state.”

The clause of the affidavit, which is claimed to establish that defendant is not a resident of this state, is as follows:—

“ The defendant is not a resident of the state of New-York; that said defendant has but just emigrated to this country, and has no permanent residence, except his staying as a boarder and lodger with this deponent.”

This shows the facts upon which the plaintiff forms the conclusion, that the defendant is “ not a resident of this state,” viz.: he “ has but just emigrated to this country.” This fact shows he has left his native land for ever, and has come to reside permanently in this.

The plaintiff also states, he “ has no permanent residence, except his staying as a boarder and lodger with this deponent.” The word “except” as here placed, would certainly imply that his permanent residence was at the plaintiff’s; this, however, I presume was not the intent and meaning of the plaintiff : he intended to convey the idea that defendant had no permanent residence, but merely boarded and lodged with the plaintiff.

The question under this affidavit is this: If a person, an emigrant, having left for ever his native land, is living in the state of New-York, without any determination to reside any where else, is he, or not, a resident of this state under the statute 1 In my judgment, he is a resident. He is here— living here—having abandoned his native country for ever, and has no determination to reside in any other place.

The facts, however, disclosed by the moving affidavits, conclusively show that the defendant came here with the intention of making the state of New-York his residence, and that the debt he incurred to the plaintiff, upon which this suit is instituted, was contracted in settling himself permanently in this state.

Attachment set aside, with costs of motion to defendant.  