Staples v. Fairchild (3 N.Y. 41, 1849)

Jewett, Ch. J.

The revised statutes (2 R. S. p. 3, §§ 1, 2, 3, 4, 5, 6,) provide for attaching the real and personal property of a debtor for the payment of his debts, in the following cases: 1. Whenever such debtor, being an inhabitant of this state shall secretly depart therefrom, with intent to defraud his creditors, or to avoid the service of civil process, or shall keep himself concealed therein, with the like intent. 2. Whenever any person not being a resident of this state, shall be indebted on a contract made within this state, or to a creditor residing within this state, although upon a contract made elsewhere. The first point made in this cause involves the question, whether Judge Wilson, who issued the attachment upon the application of Giles Sanford, by virtue of which the premises in question were seized and subsequently sold, and under which the plaintiff claims title, had jurisdiction. Section four of the statute provides that the application to the judge for such attachment shall be in writing, verified by the affidavit of the creditor, or of the person making the same, in his behalf, in which shall be specified the sum in which the debtor is indebted, over and above all discounts, to the person in whose behalf such application is made, and the grounds upon which the application is founded.

The application for an attachment against the property of Bradley was probably intended to be predicated upon the facts that the creditor was a resident of this state, or that the contract upon which the indebtedness arose was made within this state, and that the debtor was a resident of the state of Connecticut. Sub. 2 of § 1 of the statute gives jurisdiction to the judge to issue the attachment only in cases where the debtor is not a resident of this state, and is indebted upon contract to some person residing within this state, or to some person upon contract made within this state. These facts the statute requires to be stated in the application, and to be verified before the judge to whom the application is made, by the affidavit of the creditor, or of the person making the application in his behalf, as the ground for issuing the attachment or warrant. Although the application of Sanford; the creditor, was in writing and verified by his affidavit; and in it was specified the sum in which Bradley was indebted to him, over and above all discounts, and that such demand arose upon Contract, and that Bradley was not a resident of this state, but a resident of the state of Connecticut ; it does not state, as the grounds upon which the application was founded, either that Sanford resided within this state, or that the indebtedness of Bradley to him arose upon a contract made within this state. It was first said on the argument that it was not necessary that the residence of the creditor should be stated in the application. That would be true in a case where the residence of the creditor was not the ground relied on, to give jurisdiction to the officer to issue his warrant or attachment. Where the application omits to state that the residence of the creditor is within this state, to show jurisdiction in the officer, it must state that the contract upon which the indebtedness arose, was made, within this state. It is not enough to specify the sum of the indebtedness, that it arose upon contract, and that the debtor was a non-resident of this state. But to give jurisdiction to the officer, it must be also stated in the application, either that the creditor resides within this state, or that the indebtedness arose upon a contract made within this state.

It was next said that if it was necessary that the residence of the creditor should be stated in the application, it was sufficiently stated in the application made by Sanford. In describing the applicant in the application presented to Judge Wilson for the attachment or warrant, it was stated, “ the petition of Giles Sanford, of the city of Albany, respectfully sheweth,”