The attachment was obtained pursuant to the Municipal Oourt Act, section 74, subdivision 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 Mew-York, with intent to defraud his creditors * * 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; Doheny v. Worden, 75 id. 47; Ringler Co. v. Newman, 33 Misc. Rep. 653. 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.
It has been suggested that the warrant might be sustained on the ground that the facts stated disclose that the defendant was a non-resident, 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 sú non-resident, nor is the proof of non-residence, 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 facte showing that the defendant is a non-resident. The only statements contained in it which bear upon the *436point are “ That defendant informed deponent that he and his wife were to sail the following morning, October 3rd, for France, where they expected to take up their residence with his wife’s parents. He exhibited to deponent at that time passage tickets foi his wife and himself on board the steamer La Loraine. The. defendant at that time informed deponent that he did not know when he would return to the United States.”
As proof of non-residence 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 non-resident. 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 Hew York city, and has his mail sent to his attorney’s office to be held awaiting his return to Hew 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, the General Term of this department said, at page 309: “ The fact that the defendant never acquired a residence in another place, and that he had all the time since 1891 (speaking in *4371893) an intention to return and resume housekeeping with his family in this city, would be sufficient to constitute a domicile within this 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’s legal domicile.” Again, in Mayor v. Genet, 4 Hun, 487, the court said: “ The fact that his family may continue to reside within this 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 Hew 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. * * * ” If the rule established by them be correct, and mere place of abode irrespective of intention establishes residence, then every person who leaves the state however temporarily becomes eo- instemti a non-resident 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 non-residence, it 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 non-resident at some future time.
The statutes authorizing the attachment of property are 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 non-residence in the face of almost conclusive proof to the contrary. The facts of this case are. not as strong as those in Doheny v. Worden, 75 App. Div. 47, in which the attachment y^as vacated.
*438The moving papers are insufficient and the attachment should have been vacated.
The order appealed from is reversed with costs and the warrant of attachment is vacated.
Seabuky, J., concurring.