(dissenting):
This motion was made upon the affidavit on which the attachment was granted. -Assuming that the cause of action, and the grounds, and amount thereof, sufficiently appear by the affidavit, it is still fatally defective in other respects ; and it cannot be upheld without a departure from established rules and practice, greater than the court can be justified in making. Section 229 of the Code provides that a warrant of attachment may be issued when it shall appear by affidavit (amongst other things) that the defendant “ is not a resident of the State, or has departed therefrom with intent to defra/ad his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent.’’’’ It is within one of these provisions that the affidavit is claimed to have brought the defendant. But as it is not asserted that he is not a resident of the State, it is essential that it should appear either that he has departed from the State with intent to defraud his creditors, or to avoid service of a summons, or that he keeps himself concealed within the State with like intent. The facts to be established are, either the departure from the State or the concealment therein with intent to defraud creditors, or to avoid service of summons; and if a case is shown from which it appears that, he lias done one or the other of those things, it is not necessary clearly to establish which of them, for the application may be in the disjunctive and embrace all the alternatives of the section. (Van Alstyne v. Erwine, 11 N. Y., 331; The People v. The Recorder of Albany, *4926 Hill, 429; Morgan v. Avery, 7 Barb., 656.) In Van Alstyne v. Erwine, the court say: “ The remedy is precisely the same, whether the debtor had absconded or was concealed; no difference whatever existing in the proceeding in the two cases. A case may be so circumstanced that, although it may be conclusively shown that the debtor has left his place of residence in order to defraud his creditors by depriving them of their remedies, yet it may be impossible even to conjecture whether he has continued his flight beyond the boundaries of the State, or has resorted to some place of concealment in it. * * * If the objection is well founded, there could be no proceeding under this statute in a case thus circumstanced. The debtor would have only so to conduct his evasion as to make it uncertain which course he had adopted, and he would avoid this remedy.” And again the court say: “ The same considerations apply to the other alternative — whether the debtor’s intent was a general one to defraud his creditors, or whether it was to avoid the service of civil process.” That case, as well as the case in 6 Hill, arose under the Revised Statutes, but the provision of the statutes is so nearly identical in language with that of the Code, that no possible reason can be assigned for a different’ construction. It follows, therefore, that the intent of the debtor may be stated in the alternative, and so may the departure or the concealment, but the facts stated by the affidavit must be such as to show that one or the other of each set of alternatives exists; that is, a departure from the State or a concealment within it, and an intent to defraud creditors or to avoid service of summons. The intent to defraud creditors or to avoid service of summons, is a question of fact to be established to the satisfaction of the judge, and it has been more than intimated that the affidavit should assert the intent either positively or as matter of belief. (Miller v. Brinkerhoff, 4 Denio, 120; Genin v. Tompkins, 12 Barb., 265.) Undoubtedly that is the better practice, and should always be adopted; but as neither the most positive assertion of the affiant, nor the statement of his belief, is sufficient without setting forth facts upon which the judge can legally find its truth, it would seem to follow upon sound principles, that the statement of facts which show the intent so that the judge can be legally satisfied of its existence, ought to be held enough. (Ex parte Robinson, 21 Wend., 672.) The affidavit *493in this case is barren of any assertion, either positively or on information or belief, that the defendant had departed the State with intent to defraud creditors, or to avoid service of summons, or that he keeps himself concealed therein with intent to do either of those things. ■ Assuming that statement not in strictness to be necessary, the question becomes: Has the affiant stated facts, from which the judge who granted the warrant could lawfully be satisfied that one or the other intent existed, and that defendant had departed the State, or concealed himself within it, to effectuate such intent? All that can be found in the affidavit bearing on the subject, may be briefly stated: First, in the statement tending to show that the indebtedness for which the action was brought, is. for moneys fraudulently obtained by defendant, and wrongfully applied to his own use; second, that an indictment for obtaining a portion of the moneys, had been tried in December, 1873, and the defendant had been convicted by the jury; third, that “ shortly after his conviction, and before the time fixed for him to receive sentence, he escaped from the custody of the sheriff of the city and county of New York and absconded, and that, though the most strenuous efforts have since been made to discover his whereabouts, he still continues concealed.” These statements failed to show whether the defendant had departed from the State, or had concealed himself therein, but they did establish that he had escaped from the custody of the sheriff, and had concealed himself either within the State or elsewhere. They were quite enough to answer one or both of the alternatives of the Code, as to the mere fact of departure from the State, or concealment within it. But did they establish the intent to defraud creditors, as required by the Code, or some other intent — the intent to avoid service of summons, or some other process ? In my opinion they show an intent, by flight and concealment, to avoid sentence and punishment under the conviction of crime, and fail to show an intent to defraud creditors, or to avoid the service of civil process.
In Lynde v. Montgomery (15 Wend., 461), it was held not sufficient to sustain an attachment, to show that the defendant had concealed himself to avoid service of criminal process. That case arose upon the statute which allowed attachments to issue from justices’ courts, where it was made to appear that the defendant *494had kept himself concealed “with the intent to avoid service of civil process.” (2 R. S., 230, § 26.) And the court, holding that the process described in the affidavit xvas a criminal qne, held' the attachment invalid, saying: “To sustain the attachment it should have appeared affirmatively that the process was a civil process.” [Evans v. Saul, 8 Martin [N. S.], [La.], 247; People v. O’Brien, 6 Abb. [N. S.], 63, 68; 2 Wait’s Pr., 138.) The 'analogy between the statutes is complete, for the summons mentioned in section 229 of the Code, is .clearly the civil process provided for the commencement of actions under the Code.
It is no argument to say that the defendant’s departure and concealment were with intent to avoid punishment for crime, and therefore creditors ought in such a case to have the process of attachment. Perhaps so; but the Code has not given it, except in the specified cases, and to add another, is to legislate, which is not the province of the court. It is easy to see that other fact's (if they exist) might have been added, which would tend to show that the escape and concealment involved the element of intent to defraud creditors, or avoid service of process, such as the disposing of, or incumbering or attempting to remove property; the failure to meet or provide for debts ; the neglect to put any one in charge of property or business left behind; and a variety of incidents of that nature, from which it might be justly inferred that an intent to defraud creditors was coupled with a design to evade punishment of crime; for very clearly, where both exist, the right to the warrant of attachment would not be prejudiced by the fact that the defendant was also evading criminal punishment. With all reasonable desire to uphold the attachment in this case, I find myself constrained to the conclusion that it cannot lawfully be done. My brethren are, however, of opinion that the facts are sufficient to establish that defendant is a' non-resident of the State, and that the attachment should be held valid on that ground. I cannot agree to that conclusion. The warrant was not sought or granted on that ground. •There is no assertion of non-residence. The defendant is a fugitive from justice, and the idea of non-residence is based altogether upon a supposed presumption that he has fled to a foreign country or State, and there remains because he would be safer there from the vigilance of the officers from whom he escaped, than in this State. *495I am not able to see that such a presumption exists. If official vigilance has been no greater since than at" the time of the escape, a presumption based upon it .has small ground to stand upon. But the State is large enough to furnish numerous places of concealment, and even the city itself has harbors of refuge, in which criminals may be safe from the search of those who seek diligently not to find. In my judgment the facts alleged in the affidavits' fail to show non-residence as required by the Code, which is, I think, a fact to be distinctly asserted and affirmatively proved.
I cannot concur in the affirmance of the order:
Order affirmed, with ten dollars costs and disbursements.