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Appeal from Municipal Court, Borough of Manhattan, Second Dis

trict.

Action by Moses Gross against the R. & S. Outfitting Company for goods sold and delivered. From a judgment for defendant and from an order denying a motion to vacate the judgment and order a new trial, plaintiff appeals. Reversed and new trial ordered.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

Bogart & Bogart, of New York City (Abraham P. Wilkes, of New York City, of counsel), for appellant.

Louis J. Frey, of New York City, for respondent.

LEHMAN, J. (1) The plaintiff's attorney testified that an officer of the defendant company came to him two or three days after the summons and complaint were served, and told him that the bill was due, and he wanted to pay it, but he desired an extension of time. The complaint was for goods sold and delivered, and, if this admission of the officer had been binding on the corporation, I think it would have constituted a valid admission of the cause of action alleged in the complaint. It is true that the evidence was incompetent, for it was not part of the res gestæ, and was not binding on the defendant. The defendant, however, did not object to the testimony on this ground, and the testimony was admitted, and no motion was ever made to strike it out. I do not think that with this testimony in the case and undenied the trial justice had any authority to dismiss for failure of proof.

[2, 3] The defendant also claimed that the plaintiff had no power to bring this action because he was enjoined by the bankruptcy court from collecting this account. The injunction order forbids the plaintiff from collecting or receiving this account, but it expressly permits his attorneys to collect the account and to retain in their possession the moneys so collected. I do not think that this order can be construed as forbidding the plaintiff from bringing an action on the account. Its intention in my opinion was to permit such an action if the amount of the judgment be received by the attorneys. In any event, however, the question whether the injunction is disobeyed concerns only the court which issued the injunction. Gibbons v. Bush Co., Ltd., 115 App. Div. 619, 101 N. Y. Supp. 721.

Judgment should therefore be reversed and a new trial ordered, with costs to appellant to abide the event.

SEABURY, J., concurs.

PAGE, J. I dissent on the ground that the plaintiff wholly failed to prove his case.

(155 App. Div. 211.)

HELLER, HIRSH & CO. v. GENERAL MFG. CO. (Supreme Court, Appellate Division, First Department. February 14, 1913.)

1. DISCOVERY (§ 49*)-EXAMINATION BEFORE TRIAL-NONRESIDENCE OF PARTY EXAMINED.

In an action against a corporation for commissions on sales, in which plaintiff must rely on evidence which can only be obtained from defendants, an oral examination of defendant's officers and agents before trial will not be denied merely because they reside in another state.

[Ed. Note. For other cases, see Discovery, Cent. Dig. § 63; Dec. Dig. § 49.*]

2. DISCOVERY (§ 28*) -ORAL EXAMINATION.

The present disposition of courts is to permit examination on oral questions, where the ends of justice will be thereby promoted.

[Ed. Note. For other cases, see Discovery, Cent. Dig. §§ 41, 43; Dec. Dig. § 28.*]

Appeal from Special Term, New York County.

Action by Heller, Hirsh & Co. against the General Manufacturing Company. From an order denying plaintiff's motion to examine certain designated witnesses in Philadelphia upon oral questions, defendant appeals. Order reversed and motion granted as to witnesses specifically named in the notice of motion.

See, also, 150 App. Div. 905, 135 N. Y. Supp. 1117.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Nathan D. Stern, of New York City, for appellant.
James B. Mackie, of New York City, for respondent.

PER CURIAM. The action is by an assignee of brokers for agreed commissions upon garbage tankage alleged to have been sold by said brokers on account of defendant.

[1] The witnesses sought to be examined are officers of defendant and a former sales agent of defendant who may reasonably be expected to be a reluctant, if not an actually hostile, witness. In order to establish its cause of action, the plaintiff must rely upon the evidence which can only be obtained from defendant, its officers, and books. Under these circumstances, if the defendant and its officers were within this jurisdiction, there would not be a moment's hesitation in permitting plaintiff to have an examination before trial, which would necessarily be oral. I do not think that plaintiff should be deprived of the perfectly legitimate advantage of such an examination merely because defendant and its officers are in another state.

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[2] The recent trend of decisions has been in favor of relaxing to some extent the former rule under which commissions to examine on oral questions were discountenanced. The disposition of the courts at present is to permit such examinations where it appears that the elucidation of the truth, and consequently the ends of justice, will be facilitated thereby. Frounfelker v. D. L. & W. R. R. Co., 81 App. Div. 67, 80 N. Y. Supp. 701; Wolf v. Union W. & P. Paper Co., 148 *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes App. Div. 627, 133 N. Y. Supp. 239; Deery v. Byrne, 120 App. Div. 6, 104 N. Y. Supp. 836.

The order so far as appealed from should be reversed, with $10 costs and disbursements, and the motion granted as to the witnesses specifically named in the notice of motion.

(79 Misc. Rep. 434.)

BODINE v. BODINE.

(Supreme Court, Appellate Term, First Department.

February 18, 1913.)

1. COURTS (§ 189*)-MUNICIPAL COURTS-ATTACHMENT AFFIDAVIT.

Under Municipal Court Act (Laws 1902, c. 580) § 74, subd. 2, which authorizes an attachment if defendant, being a natural person and a resident, has departed or is about to depart from the county with intent to defraud his creditors, affidavits for such an attachment must state facts from which the fraudulent intent may be presumed; a mere conclusion of the moving party unsupported by evidence being insufficient.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

2. COURTS (§ 189*) - MUNICIPAL COURTS-ATTACHMENT-AFFIDAVIT.

An affidavit insufficient under Municipal Court Act (Laws 1902, c. 580) § 74, subd. 2, as an affidavit for attachment on the ground that defendant has departed or is about to depart from the county with intent to defraud creditors, cannot be sustained as an affidavit for an attachment on the ground of nonresidence, where it states that defendant told affiant that he and his wife were to sail for France, where they expected to take up their residence with her parents, that he exhibited passage tickets, and at that time told affiant that he did not know when he would return to the United States.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

3. COURTS (§ 189*) -MUNICIPAL COURTS-ATTACHMENT-NONRESIDENCE-EVI

DENCE.

On motion to vacate an attachment, evidence held to show that defendant was merely a resident sojourning abroad, and not a nonresident. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

4. ATTACHMENT (§ 2*) -STATUTORY PROVISIONS- CONSTRUCTION.

Statutes authorizing attachment, being in derogation of the common law, must be construed strictly in favor of the attachment debtor.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 5-7; Dec. Dig. § 2.*]

Lehman, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by George C. Bodine against M. Harold Bodine. From an order denying a motion to vacate an attachment, defendant appeals. Reversed and attachment vacated.

Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Strauss, Reich & Boyer, of New York City (Eugene D. Boyer, of New York City, of counsel), for appellant.

William F. Quigley, of New York City, for respondent.

PAGE, J. [1] The attachment was obtained pursuant to the Municipal Court Act (Laws 1902, c. 580), § 74, subd. 2, which recites for a ground for attachment:

"If the defendant is a natural person and a resident of the state, that he has departed or is about to depart from the county where he last resided to a place outside the city of New York with intent to defraud his cred-. itors.

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The affidavits in support of the warrant must state facts from which the fraudulent intent may be presumed and the mere conclusion of the moving party unsupported by evidence is insufficient. Rallings v. McDonald, 76 App. Div. 112, 78 N. Y. Supp. 1040; Dohleny v. Worden, 75 App. Div. 47, 77 N. Y. Supp. 959; Ringler v. Newman, 33 Misc. Rep. 653, 68 N. Y. Supp. 871. The only statement contained in the moving papers which relates to the intent of the defendant is the conclusion at the end of the affidavit of the plaintiff's attorney:

"That defendant has removed all of his property, as deponent is informed and verily believes, and has gone abroad with no intention of returning and with full intention of cheating and defrauding his creditors in this country."

The sources of his information and grounds of his belief do not appear, and no facts are set forth from which such a conclusion could be drawn.

[2] It has been suggested that the warrant might be sustained on the ground that the facts stated disclose that the defendant was a nonresident, although neither in the affidavit upon which the warrant was granted, nor in the brief of counsel, is it specifically claimed that the defendant is a nonresident, nor is the proof of nonresidence in my opinion sufficient to justify the attachment.

The affidavit of the plaintiff is for the most part upon information obtained from his attorney. We must therefore look to the affidavit of his attorney William F. Quigley for the facts showing that the defendant is a nonresident. The only statements contained in it which bear upon the point are:

"That defendant informed deponent that he and his wife were to sail the following morning October 3d for France, where they expected to take up their residence with his wife's parents. He exhibited to deponent at that time passage tickets for his wife and himself on board the steamer La Loraine; that defendant at that time informed deponent that he did not know when he would return to the United States."

[3] As proof of nonresidence, this statement is insufficient, first, because the exact words of the defendant are not quoted, but merely the conclusion of the deponent from them. It is very probable that the defendant said he expected to stay at his wife's parents' house while in Paris, but we cannot say from this statement alone that he used the word "residence" in its legal sense and declared his intention of becoming a nonresident. Furthermore, the subsequent statement "that he did not know when he would return to the United States"

would rather rebut such an inference. In the second place, these words merely indicate an expression of future intention on the part of the defendant, and there is no statement that he ever carried out this intention and took up a residence abroad. Opposed to it is the affidavit of the defendant's attorney that the defendant informed him he would return in a few weeks and that the defendant has stored his furniture in New York City, and has his mail sent to his attorney's office to be held awaiting his return to New York. The facts seem to fully justify the conclusion that the defendant is merely a resident sojourning abroad, and subject to the provisions for attaching the property of absent residents rather than nonresidents.

Many of the old cases seem to hold that the term "residence" within the meaning of the sections of the Code relating to attachments refers merely to the present place of abode of the debtor irrespective of his intention. In Hanover National Bank v. Stebbins, 69 Hun, 308, at page 309, 23 N. Y. Supp. 529, at page 530, the General Term of this department said:

"The fact that the defendant never acquired a residence in another place, and that he had all the time since 1891 (speaking in 1893) an intention to return and resume housekeeping with his family in this city, would be sufficient to constitute a domicile within the state. But the word 'residence,' as used in section 636 of the Code, means the abode or place where one actually lives, and not one of actual domicile."

Again, in Mayor v. Genet, 4 Hun, 487, the court said:

"The fact that his family may continue to reside within the state and that his home or domicile may be here is not enough under the circumstances shown to render him a resident of the state."

These cases were all decided before 1895 when the last part of section 636 of the Code was added providing as a ground for attachment:

"Where the defendant, being an adult and a resident of the state has been continuously without the state of New York for more than six months next before the granting of the order of publication of the summons against him, and has not made a designation of a person upon whom to serve a summons in his behalf.

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If the rule established by them be correct, and mere place of abode irrespective of intention establishes residence, then very person who leaves the state, however temporarily, becomes eo instante a nonresident and subject to attachment and the above provision for attachment of the property of absent residents is vain and foolish. Granting, however, that mere living abroad is sufficient proof of nonresidence, would not help the case of this attaching creditor, as there is positively no proof in the papers that the defendant has a place of abode in another state, or that he has not a regular place of abode in this state. The only proof in the case is an alleged declaration of intention to become a nonresident at some future time.

[4] The statutes authorizing the attachment of property is a provisional remedy in derogation of the common law. They must be construed strictly in favor of the attachment debtor. Applying this principle, I do not think we can support this attachment upon a mere inference of nonresidence in the face of almost conclusive proof to

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