Opinion
March Term, 1853
S. Beardsley, for appellant.
N. Hill, jr., for respondent.
The plaintiff, it is claimed by the defendants, was proceeded against by them on the ground that they were residents of the city and county of New York, and that he was a resident of the state of Pennsylvania. The material question made for determination, is, whether the application, made to the recorder of New York, for an attachment, stated that the applicants were residents of the city and county of New York. For unless it did, the attachment and all subsequent proceedings under it, it is well settled, must be held to be void.
The application commences thus — "The application of Charles L. Young Jeremiah B. Taylor and James W. Healey, all of the city of New York," c. respectively shows, c." It is verified by the affidavit of Jeremiah B. Taylor, thus; "Jeremiah B. Taylor, one of the above applicants, being duly sworn says, that the matters stated in the above application are true of his own knowledge." It is insisted that the fact that the applicants were all residents of the city of New York, is stated in the application, and that it was duly verified because the affidavit of Taylor, verifies all of the matters stated in the application. I think that it is a mistake to say, that the fact of residence of the applicant, is a matter stated in the application; and therefore there is no oath to the fact of residence. It is a jurisdictional fact. There are many decisions in our court, holding uniformly, that the averment of facts upon which jurisdiction in such and in similar cases depends, must be positive, and that it is not sufficient that jurisdiction may be inferred, argumentatively, from what appears in the application or petition. This case can not, as I think, be distinguished in principle from the case of Staples v. Fairchild. The judgment must be affirmed.
MASON, J., delivered a written opinion concurring.
MORSE, J., did not hear the argument.
Judgment affirmed