BOWMAN v. PERINE

BOWMAN v. PERINE. City Court of New York, Special Term ; July, 1889. 1. Attachment in city court of New Torh; transaction of business in' person.] A person who resides in the State of New York, outside of the City of New York, having a place of business therein where business is done for him in his name, on his capital and at his risk, by persons employed by him, and who seldom personally appears at that place of business, and exercises no active or continuous control over the same, has not an office in the City of New York, “ where he regularly transacts business in personand a warrant of attachment may be issued against his property in the city court under section 3169, subdivision 3, of the Code of Civil Procedure. Motion to vacate attachment. Sampter & Bloomfield, attorneys for plaintiff, for attachment. Charles A. B. Pratt, attorney for defendant, in opposition. [MAJORITY — Holme, J.] Holme, J. The attachment in this case was granted upon an affidavit showing that the defendant is not a resident of the City of New York, and has not an office within that city where she regularly transacts business in person. She moves to vacate the attachment on the ground that, while it is true she is not a resident of this city, it is not true that she has not an office here where she regularly transacts business in person. It appears from the affidavits presented that she has a place of business at No. 350 Canal street, New York, where she is engaged in the woolen business. Her husband, prior to 1884, had been engaged in the same business, and in that year failed. Since then he has been acting as the agent of the defendant, conducting the woolen business for her at the store in Canal street, under a power of attorney, which authorizes him to sign checks and notes for her, without indicating that he signed as attorney, but with power to use her name the same as she might use it herself. The affidavits of the clerks engaged in that business show that she occasionally comes to the store. One of them, examined before a referee, was not willing to swear that he had seen her at the store half a dozen times since last January. He could say that he had seen her at the store four times talking with her husband. It nowhere appears from any affidavit presented by the defendant that she took an active part in the business; that she bought or sold or gave directions to the clerks, or attended to any department of the business. She resides at Staten Island, and appears to have given to her husband the same control of the business as he would have had if it were his own. The affidavit presented by the plaintiff in opposition to the motion was that, notwithstanding the plaintiff had been • at the store three or four times a week, and lately every day, he never saw the defendant there. I am constrained to take the view of this case that, although the plaintiff owns the business at No. 350 Canal street, it cannot be stated that she regularly transacts business there in person. I think that something more than merely having a business in New York, under the control and management of an agent, is meant by the language of the Code, providing that, if a person against whose property an attachment is sought has an office for the regular transaction of business in person, an attachment can not be granted. If that or anything similar was intended it could have been so stated in plain language, free from doubt. If, for instance, it was intended to be sufficient that a defendant had a place of business here, where business was done for him on his capital, and at his risk, by persons employed by him, although he resided elsewhere himself, and never, or but seldom, personally appeared at his place of business, it is obvious that the Code would not require that it should appear that the defendant has not an office for the regular transaction of business in person, but it should be sufficient that he did business here through others, though in his own name. I do not see how it can be reasonably maintained on the affidavits, on this motion, that the defendant regularly transacts business in person in New York, unless by giving to the Code a meaning which cannot be implied from its language. The language is plain, and I, at any rate, do not see any reason for distorting it into a meaning beyond its literal sense; nor have I been able to find an authority that would justify me in holding that under the circumstances here presented the property of the defendant is not liable to attachment. Motion denied with costs. The language of Code Civ. Pro. § 3169, subd. 3 (the section stating the cases wherein a warrant of attachment may be granted in the city court of New York), is as follows : ' “ That the defendant, being a resident of the State, is not a resident of the city of New York; and has not an office within that city, where he regularly transacts business in person.” A non-resident of the State having an office for the regular transaction of business in the City of New York, need not file security for costs in an action brought by him in the city court of New York. Beebe ». Parker, 22 Abb. N. 0. 445.