[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 372 It has been held in this court that no appeal lies from an order vacating an attachment, where it is at all discretionary, even although it involves a substantial right. (Anonymous,59 N Y, 315.) We cannot, therefore, weigh conflicting evidence or decide upon controverted facts which may arise upon affidavits presented on a motion to vacate an attachment, and when the General Term has decided such questions no review can be had as to the conclusion at which they arrive. Upon this appeal therefore we can only consider such questions as relate to the jurisdiction acquired by the court upon the papers presented over the proceedings, and such defects therein as are radical and affect the sufficiency of the affidavit upon which the attachment was issued. It is claimed that the affidavit was insufficient to confer jurisdiction, because it did not show that a summons was issued or that it was served. It appears from the affidavit that an action had been commenced for the recovery of the amount due the plaintiffs. This we think would include the issuing of a summons which is essential for the commencement of an action, and without which it could not be instituted, and makes out a case directly within section 227 of the Code. In support of the fact that such summons was issued, is the affidavit of one of the defendants upon which the motion was *Page 374 made, in which it is stated that at the time of the service of the summons and attachment, no cause of action existed against the defendants in favor of the plaintiffs. In regard to the service of the summons, the section cited, as amended in 1866, expressly provided that for the purpose of that provision "an action shall be deemed commenced when the summons is issued," etc.
Although it was held in Kerr v. Mount (28 N.Y., 659) that the issuing of a summons is not the commencement of an action, and that a service was necessary for that purpose; that decision was made prior to the amendment cited, which, no doubt, was intended to obviate the defect of the Code in this respect. (Zeregal v. Benoist, 33 How. Pr. R., 133.)
It is also urged, that the affidavit does not show that the plaintiffs' claim was due and payable. This question was controverted by the affidavits, and decided in favor of the plaintiffs, upon the facts, and hence, as we have seen, cannot be reviewed upon this appeal. The last remark will also apply to some extent, to the point made as to the defendants' residence, and may perhaps be regarded as disposing of that question. But even if the defendants had a place of business in the city of New York, as sworn to in one of the affidavits, we do not think that this fact made them residents of New York. The plaintiffs' affidavit upon which the attachment was issued shows, that they were non-residents of the State of New York; that two of them reside in Connecticut and one in New Jersey. This is not denied, nor do the defendants claim that they were residents of New York for any purpose, but merely were doing business there. This is not sufficient to constitute a residence so as to exempt the defendants from attachment as non-residents, and we concur with the views expressed in the opinion of the General Term upon this branch of the case. The authorities clearly uphold this construction as will be seen by reference to the cases there cited. The case of Turner v. Church (1 Abb., 299), which is relied upon by the defendants, is distinguishable from the one at bar, and presents some features from which a residence in the State might be inferred, as the defendant had previously resided *Page 375 in the State, and still continued to keep rooms where he boarded and lodged in the city of New York, except on Saturday of each week, when he left and remained with his family out of the States, returning on the following Monday. But this case is criticised in many of the cases, and so far as it has any application to the facts presented in the appeal book here, I think may be considered as overruled.
It is claimed that only a part of the order at the Special Term was appealed from, and that the appeal was an acceptance of the other part, and a waiver of the right to appeal. The rule does not apply to a case of this character, but only to cases where the provisions of the judgment or order are such that the party by not appealing from a part enforces or accepts a substantial benefit by reason of that portion of the order not appealed from. (Bennett v. Van Syckel, 18 N.Y., 481; Murphy v.Spaulding, 46 id., 556.) It does not appear upon this appeal, that the stipulation provided for in the Special Term order, was tendered or accepted, and hence it is not apparent that any benefit was derived by the plaintiffs from the form of the notice of appeal. The most that can be claimed for the notice of appeal is, that it was irregular, and that irregularity, as will hereafter be seen, was disposed of upon a motion to dismiss the appeal which is also here for review. As there was no error in the decision of the General Term, the order appealed from must be affirmed.
The appeal from the order denying the motion to dismiss the plaintiff's appeal was also, we think, properly disposed of. It involved at most a question of irregularity, and it appears that the defendants were chargeable with laches in making the motion, and had accepted the papers served without any objection thereto and without returning the same. The disposition of the motion was clearly within the discretion of the court, and the order therefore is not appealable, and the appeal from the same should be dismissed.
All concur, except EARL, J., who is for dismissal of both appeals, RAPALLO, J., not voting.
Ordered accordingly. *Page 376