The appellant presents two points, one of which only is considered in the majority opinion, but, since I dissent from a reversal, it is necessary to consider the other also. It is that the original defendant died within thirty days of the time the warrant of attachment was issued, and, inasmuch as personal service was not made upon her or service by publication commenced within that time, the warrant of attachment falls. That contention is based on the provisions of section 638 of the Code of Civil Procedure. After the death of the original defendant a temporary administratrix of her estate was duly appointed, and permission of the Surrogate’s Court to continue the action against the administratrix was duly obtained, and personal service was made upon her within thirty days of the granting of the warrant of attachment. I am of opinion that’ this was a full compliance with the requirements of the provisions of said section 638 of the Code of Civil Procedure. (See Kelly v. Countryman [Opinion of Landon, J., below], 15 Hun, 97; Thacker v. Bancroft, 15 Abb. Pr. 213; More v. Thayer, 10 Barb. 258; Kneeland Attachments, § 270.)
Heretofore the rule followed in this department on appeals from orders granting or denying motions to vacate attachments has been that the determination of the Special Term on a question of, residence will not be disturbed, even though the appellate court might have come to a different conclusion, unless there is a clear preponderance of evidence against the determination made by the Special Term. (Prentiss v. Butler, 37 N. Y. St. Repr. 605.) I am of opinion that the "decision about to be made is a departure from that wise rule, which has beén deemed necessary to secure the rights intended to be conferred by this provisional remedy. Where the ground of the attachment is non-residence, of course the burden is on the plaintiff to establish the non-residence of the defendant at the time the attachment was issued. (Ricetti v. Mapleson, 22 Wkly. Dig. 215.) The. warrant of attachment was issued on the *4487th day of April, 1910. The uncóntroverted evidence shows that the original defendant, Etta M. Brower, on the 3d day of April, 1910, and for some years prior thereto, resided at Oradell, N. J.; that .her husband died at Oradell on the. 10th day of March, 1910; and that she thereafter expressed an intention of making her home with Mrs. Kramer, the present defendant, and .her husband, at No. 1236 Bedford avenue, borough of Brooklyn, New York. It appears that Mrs. Kramer was employed in the family of. the decedent for nine years, and resided with her at Oradell on said third day. of April. The evidence further shows, I think, that the. -decedent did not take up a new residence until after the warrant of attachment was issued. It is true that she left Oradell on said third day of April and caine to Brooklyn to the. home of the sister of Mrs. Kramer,, where she was taken ill, and for that reason, I think, remained until the.10th day of April, 1.910, on which day, for the first time, she went to the home of Mrs. Kramer at No. 1236 Bed-ford avenue, and there she died the next day. It may well be that on the 10.th day of April, 1910, by going to the. home of Mrs. Kramer she effected a change of-residence, but that could not affect the warrant of attachment issued three days before. It quite clearly appears that when the decedent left Oradell-. on the third day of April she had not given up her residence at that place. She stated to two neighbors that she was merely going away on business and that she intended to return. Moreover, it appears that at that time her furniture, fixtures and effects were still in the house occupied by her at Oradell and that she had a lease of the house which did not expire until the 15th day of April, 1910; that after her husband’s death she made an agreement with their landlord to lease the premises until said fifteenth day of April, and paid the rent therefor, and although some of her furniture was moved from the premises on the 6th day of April, 1910, she did not vacate the premises and her agent refused to surrender the keys or possession of the.premises, claiming to be acting under instructions from her, until after her death. It does not appear that all of her furniture, fixtures and effects were moved on the sixth day of April, or prior to her death. Furthermore, it appears that there was a telephone in the .decedent’s house at Oradell, evidently in. the .name of her husband or in her name, on the 5th day of April, 1910, and that oil *449that day the defendant, who seeks to vacate this attachment on the ground of a change of residence of the decedent between the 3d and the 7th days of April, 1910, and who was a member of. decedent’s household at Oradell, answered a call on the telephone at said residence by one Kobert Dixon, who made one of the affidavits on which the attachment was issued and who was intimately acquainted witli the decedent and her husband and with the defendant Kramer, and stated to him that the decedent still resided there, but was absent from home on that day and was expected back by the end of the week. The defendant does not deny that Dixon talked with her over the telephone on that day, but she does deny that she informed him that the decedent still resided at Oradell. She does ndt, however, state what the conversation was, and, therefore, his evidence should be accepted, and furthermore, the fact that she was still living in the house at Oradell tends strongly to support the claim that the decedent had not at that time changed her residence, and would likely come back, and I think she would have returned had she not been taken ill.
I am of opinion, therefore, that the determination of the Special Term that the decedent was a non-resident of the State at the time the warrant of attachment was issued is fairly sustained by the evidence and should not be disturbed. I, therefore, dissent from a reversal of the order.
Order reversed, with ten dollars costs and disbursements,- and motion granted, with ten dollars costs.