Diller v. Willis

This is an appeal taken by defendant from a judgment of the Municipal Court of the city of Mew York. The appellant claims that the judgment was void, because rendered without jurisdiction. It is claimed that the judgment must be reversed upon a number of grounds. Only one of these need be considered. Mo personal service of the defendant was made, but the return shows that an attachment was granted, and issued to the marshal, upon which jurisdiction was evidently intended to be founded. The only provision for entering judgment without personal service on the defendant or his appearance is that in section 1329 of the Consolidation Act (Laws 1882, chap. 410), and section 2918 of the Code of Civil Procedure, where it is stated that judgment may be entered in such a case “ Where * * * property of the defendant has been duly attached by virtue of a warrant of attachment.” Before property can be duly attached, the warrant must have been lawfully issued. In this case, however, no warrant was properly issued. The affidavit, upon which the warrant was issued, clearly shows that the ground on which the warrant was sought was the alleged nonresidence of defendant, who it was alleged “ Resided at Plattsburgh, State of Mew York and without the County of Mew York.” This is insufficient to support an attachment in the Municipal Court. An attachment can only be sustained where the defendant is a nonresident of the State and not merely a nonresident of the county. Code Civ. Pro., § 29'06; Cons. Act, § 1317.

*199The plaintiff prohahly placed reliance on the case of Van Kirk v. Wilds, 11 Barb. 520. When that case was decided, chapter 300 of the Laws of 1831 was in force and, by section 33 thereof, snch a warrant as was here issued was proper. This act, however, was repealed upon the enactment of the Code. Laws of 1880, chap. 245, § 9. The warrant of attachment, having no proper foundation, was issued without jurisdiction and was void, and accordingly it follows that no property of defendant could have been duly attached by virtue of it. Kingsford v. Butler, 71 Hun, 598.

The necessity of personal service was not, therefore, dispensed with, and the judgment herein entered was without jurisdiction and void and must be reversed, with costs.

Andrews, P. J., and O’Gorman, J., concur.

Judgment reversed, with costs.