§ 6201.Grounds for attachment.

This section is derived from CPA § 902 and part of § 903. The remaining portions of § 903 are either omitted or treated in other provisions of the article.

The limitation to an action for money only in former § 902 is altered to make attachment available in cases where forms of relief in addition to a money judgment are sought. See generally Note, Attachment in New York—A Cumbersome Legal Tool?, 6 Syracuse L Rev 308, 312–15 (1955). The attachment provisions of the vast majority of states are in harmony with this broadening of attachment; by permitting a single action for all relief between parties without forfeiture of the ability to attach, it expresses the same policy as modern liberal joinder provisions. The term “money judgment” is defined in § 105(n).

For policy reasons, this broadening of the availability of attachment does not encompass matrimonial actions, which have been expressly excluded.

The words “order of attachment” are utilized in this article and in the new CPLR in place of the former phrase “warrant of attachment.” Although originally a writ issued by the court, the warrant of attachment is today clearly an order of the court. Indeed, the civil practice act has been gradually amended to state that a warrant was “granted” rather than “issued.” See Laws 1941, c 253, amending CPA §§ 912, 920. No reason appears why the word “warrant” should be retained for attachment while “order” is used for each of the other provisional remedies. Using the word “order” for all of the remedies eliminates the need for much needless language in sections referring to more than one provisional remedy. See, e.g., CPA §§ 820, 823; see also id. §§ 814–819, 821, 822.

Since an application for an order is a motion (CPA § 113; § 2211), the application for an order granting a provisional remedy is designated a motion in the new CPLR. See rule 6212. The provisions of article 22 applicable to motions generally would thus govern unless they are inconsistent with specific provisions of this article.

Subparagraph 1 of this section is derived from subparagraph 1 of former CPA § 903. Under modern conditions, this ground of attachment may operate differently upon corporations than upon natural persons. With respect to the latter, present permanent location is the controlling factor; with respect to the former, place of incorporation may determine. But a foreign corporation authorized to do business in New York, having its principal offices here and doing virtually all of its business here, is in no different position than a local resident who was born elsewhere. See Note, 6 Syracuse L Rev 308, 315 (1955).

While there is no direct authority, it is therefore possible that the courts would not treat a corporation doing a systematic and regular business in the state as a foreign corporation, regardless of the place of its incorporation. This is in accordance with the rule in most jurisdictions (see Annot, 114 ALR 1378 (1938)) and the treatment of corporations in other areas of New York law. See Comey v United Surety Co. 217 NY 268, 111 NE 832 (1916); McConnell v Caribbean Petroleum Co. 278 NY 189, 195, 15 NE2d 573, 575 (1938); Webster v Columbian Nat. Life Ins. Co. 131 App Div 837, 116 NY Supp 404 (1st dept), affd 196 NY 523, 89 NE 1114 (1909); Gaunt v Nemours Trading Corp. 194 App Div 668, 186 NY Supp 92 (1st Dept 1921); Standard Marine Ins. Co. v Verity, 243 App Div 639, 276 NY Supp 801 (2d Dept 1935). If attachment is viewed as a method of acquiring jurisdiction, as contrasted to a method of assuring a plaintiff that he will be able to collect his judgment, attachment of the property of foreign corporations otherwise subject to the court’s jurisdiction is unnecessary. There is little reason to believe that a plaintiff is less apt to collect a judgment against a foreign corporation doing business here than against a domestic corporation. Granting an order of attachment is discretionary and the court should consider whether it is actually needed in the case of a foreign corporation.

To some extent, subparagraph 1 of former 903 may have represented a legislative judgment that the property of foreign corporations and nonresidents would be difficult to reach on execution. If that be so, the provisions should be retained for the security of plaintiffs whether or not they serve any function in facilitating acquisition of jurisdiction.

Unless the local property of foreign corporations not doing business here were made subject to attachment, the plaintiff could only secure an attachment if he could show that the corporation was about to remove, secrete or dispose of property, or had already done so. See subparagraph 3. The advisory committee believes that such a burden may be unwarranted in many cases. Moreover, as already indicated, the courts are likely to limit the provision of subparagraph 1 to foreign corporations not doing business here. Accordingly, subparagraph 1 retains the “foreign corporation” ground of subparagraph 1 of former § 903. In effect, a presumption that a “foreign” corporation is about to remove property is created.

With respect to natural persons, the dual role of attachment—acquiring jurisdiction and securing the enforcement of the judgment—must also be the basis of an analysis of the “nonresident” ground for attachment. Both considerations are not always borne in mind. For example, the word “resident” in subparagraphs 1 and 7 of former § 903 has given the courts a great deal of difficulty. Subparagraph 7 would have been meaningless if temporary absence from the state was sufficient to make one “not a resident” under subparagraph 1. See Bonwit Teller, Inc. v Morris, 202 Misc 629, 116 NYS2d 84 (Sup Ct, App T 1952). Yet temporary absence with intent to avoid service of a summons was clearly a ground for attachment under subparagraph 2 of former § 903. Indeed, concealment within the state with like intent was also a ground under subparagraph 2. That provision, and that of subparagraph 7 that attachment might have been granted against a resident absent for six months if an agent for service had not been designated or could not have been served, leads inevitably to the conclusion that at least one of the purposes of the former section was to permit attachment wherever personal service could not have been made despite diligent effort, except that a resident absent for a short period with no intent to avoid service should not be harassed by attachment of his property.

To further explore the jurisdictional function of attachment against nonresidents, the grounds for attachment under those subparagraphs of former § 903 should be read with the former provisions for service of a summons. Where an attachment had been granted, CPA § 232(3) permitted service by publication, and § 233 permitted personal service without the state, against the defendants specified in former § 232-a. Foreign corporations were thus subject to attachment under former § 903(1) and then to service without the state or by publication under former § 232-a(1). Nonresidents were covered by former §§ 903(1) and 232-a(5). See also CPA § 232-a(2). Residents who had departed or concealed themselves with intent to avoid service were covered by former §§ 903(2) and 232-a(7). Finally, residents absent for more than six months, where an agent had not been designated or could not have been served, were covered by former §§ 903(7) and 232-a(8).

There is no logical reason for the lack of attachment provisions parallel to the other service provisions of former § 232-a, especially since attachment was a prerequisite to service by publication, or by personal service without the state in lieu of publication, except in marital, land or interpleader actions. It is anomalous not to permit jurisdiction to be acquired by attachment where, as in former § 232-a(3), a dissolved domestic corporation could not have been served, or where, as in former § 232-a(4), the domestic status or name of a corporation could not have been ascertained, or where, as in former § 232-a(6), the defendant’s residential status could not have been ascertained, or where, as in former § 232-a(9), an infant’s or incompetent’s representative could not have been served.

From a jurisdictional standpoint, subparagraph 7 of former § 903 presented further difficulties. If jurisdiction was sought over an absent resident, where no intent to avoid service could have been shown as to his departure, it might have been impossible to serve him before the applicable statute of limitation ran. If he was absent more than sixty days but less than four months, an attempt to serve him under CPA §§ 17 or 18 would have failed to satisfy the statute since he could not have been served within sixty days by personal service and, except in a land, marital or interpleader action, service by publication under § 232 is impossible because no attachment can be granted. After four months’ absence, the statute will be tolled under § 19, and after six months’ absence, subparagraph 7 of § 903 would permit an attachment and hence service by publication.

Moreover, subparagraph 7 of formerly § 903 was needlessly limited to adults, a limitation which has been deleted in this section. Cf. CPA §§ 232-a(8), 232-a(9).

Attachment for jurisdictional purposes of the property of a New York domiciliary was never necessary if his whereabouts were known, since personal service of a summons was possible under the 1941 amendment to CPA § 235. See also § 313. Moreover, under § 308(3), personal service can be made upon an absent resident by leaving the summons at his residence with a person of suitable age and discretion. Cf. CPA § 231.

Subparagraph 2 thus defines the jurisdictional basis of attachment more directly, permitting an attachment whenever personal service cannot be obtained after diligent effort. Protection from harassment of a temporarily absent resident nondomiciliary is afforded in two ways. First, the court has discretion to refuse to grant the order unless special circumstances, such as the imminent bar of a statute of limitation or the absentee’s intent to avoid service, are shown. Second, the language of § 6223 permits an attachment unnecessary for the security of the plaintiff to be vacated where the appearance of the defendant has obviated the need for it as a jurisdictional device.

In the case of a natural person, a presumption that the local property of a nonresident is less likely to be available to satisfy a judgment than that of a resident, appears to be reasonable. As already indicated, the temporary absence of a resident was not enough to make subparagraph 1 of former § 903 operative, but the rule was not so clear as to whether temporary presence in the state made the subparagraph inoperative. Although sufficient for jurisdictional purposes, temporary presence of the defendant does not, of itself, indicate that his property is significantly more likely to be available for satisfaction of a judgment than if he had never entered the state.

The emphasis of the courts construing subparagraph 1 of former § 903, however, has generally been on the use of attachment as a method of acquiring jurisdiction. The unusual definition of residence appearing in the cases is: “Residence as used in the attachment statute is not legal domicile, but actual place of abode or living, either of a temporary or permanent character, at which service of process may be lawfully made.” Zenatello v Pons, 235 App Div 221, 225, 256 NY Supp 763, 766 (1st dept 1932) (emphasis supplied); see also Hanover Bank v Stebbins, 69 Hun 308, 310, 23 NY Supp 529, 530 (Sup Ct 1893); Salim v Krieg, 182 Misc 721, 723, 49 NYS2d 694, 697 (County Ct 1944); Wolf v Minton, 37 NYS2d 294, 295 (Sup Ct 1942).

Thus, where a traveling orchestra leader maintained a suite at a New York hotel for a period of one and one-half months, it was held that he was a resident under former § 903, and a warrant of attachment was vacated. Loew’s Inc. v Dorsey, 197 Misc 1069, 97 NYS2d 315 (Sup Ct 1950). Similarly, an alien actually living in the state, without any determination to reside anywhere else, is a resident. Heidenbach v Schland, 10 How Pr 477 (NY Sup Ct 1854).

While some courts have suggested that mere bodily presence or temporary sojourn is sufficient to classify a person as a resident under this section (see Bonwit Teller, Inc. v Morris, supra; Loew’s Inc. v Dorsey, supra), this wholly jurisdictional view is not supported by all the opinions. Thus, in Rudis Corp. v Farid Sons, Ltd. 3 M2d 861, 157 NYS2d 44 (NY Munic Ct), affd 3 M2d 862, 157 NYS2d 1023 (Sup Ct, App T 1956), the court held that a resident and domiciliary of Pakistan who, as a temporary visitor to this country, had maintained a room in a New York hotel for one and one-half months was not a resident under former § 903. Similarly, in Equitable Trust Co. v Sala, 102 Misc 429, 169 NY Supp 930 (Sup Ct 1918), a Spanish citizen who had spent approximately half of the preceding five years in New York living as a transient in hotels was held not to be a resident.

Since the latter cases, at least, seem to imply a security purpose to the applicable language of subparagraph 1 of former § 903, subparagraph 1 of this section retains and clarifies it as “not a resident or domiciliary.” Subparagraphs 3 and 4 of this section are based upon subparagraphs 2 and 3 of former § 903, with no change intended.

Subparagraphs 4, 5 and 6 of former § 903 have been deleted. After extended consideration of the matter, the advisory committee concluded that the fact that the action is based upon fraud—especially alleged, but not proved, fraud—should not be a ground for attachment. Attachment has been limited to those cases in which the plaintiff is unable to acquire jurisdiction in any other way and those cases where it is probable, by reason of the fraud of the defendant or otherwise, that a judgment cannot be enforced. Thus, fraud in secreting or disposing of property will create a right to attachment, but fraud in inducing the contract sued upon will not.

Subparagraph 4 of former § 903 was limited to false statements in writing in a credit transaction. While it was not expressed that the liability must have arisen as a result of the credit transaction, this was probably the legislative intent. With respect to subparagraph 5 of former § 903, no case arising under it has been discovered and there is little textual discussion of its application. See 7 NY Jud Council Rep 413 n 85 (1941). It was limited to “a private person or corporation,” but the quoted words are obsolete. They were not intended as a limitation; rather, they were intended to broaden a limited provision for they performed the useful function of distinguishing the application of the deceit provision from that of the peculation provision before the two were severed in 1941. See id. at 405, 408, 409, 411–14. It has been implied that subparagraph 5 was required because of the limitation of subparagraph 4 to credit transactions. See id. at 408, 409, 413 n 85; cf. American European Export Co. v John E. Safran Co. 68 NYS2d 174 (Sup Ct 1947).

CPA § 904 has also been deleted. It granted a right to attachment to the state or a state agency where the action was for peculation. Inasmuch as the civil action for peculation is based upon facts that are ordinarily sufficient to constitute a criminal violation, this ground of attachment served little purpose. Its abolition accords with the abolition of peculation as a ground for civil arrest and with the general scheme of the new arrest and attachment provisions, eliminating their function as punishment and confining their operation to security for the plaintiff.

Subparagraph 5 is based upon paragraph 6 of CPA § 903. It would include the situations described in paragraphs 4 and 5 of former § 903. Paragraph 6 is based upon CPA § 904. These paragraphs are required in a case where attachment of the very funds which have been wrongfully received is the only effective remedy, such as where persons receive welfare funds by fraud or borrow money upon fraudulent representations. While the paragraphs are not limited to a cause of action to recover the very funds which may be attached, they are intended to cover these situations.

Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1970, ch 980; L 1977, ch 860, § 1, eff Sept 1, 1977; L 1992, ch 618, § 2, eff July 24, 1992.