People on rel. Pacific Mutual Insurance v. Machado , 16 Abb. Pr. 460 ( 1863 )

By the Court.—Sutherland, P. J.

The statute (2 Rev. Stat., 35, § 2) declares that applications under the 3d, 4th, and 5th article^ of the title,—relating to the assignment of the estates of non-resident, absconding, insolvent, or imprisoned debtors,—“ shall be made to an officer residing in the county in which the insolvent or imprisoned debtor resides or is imprisoned ; and proof of such residence or imprisonment shall b§ made at the time of presenting the petition, and before any order shall be made.”

It was held in Rusher a. Sherman (28 Barb., 416), by the general term of this district, that this proof of residence within the county where the officer resides was necessary to give the officer jurisdiction. It appears to me that the words of the statute make this preliminary proof of residence within the county a jurisdictional fact. (See, also, Matter of Wrigley, 8 Wend., 134.)

The record in this case does not show that this proof was made; perhaps the inference from the record is that there was no such proof. Rolan’s affidavit merely states that the insolvent was a resident and inhabitant of the State of Rew York. It is not probable that there was any other affidavit or proof as to the residence of the insolvent.

The petitioner, in his petition, describes himself as of the city, county, and State of Rew York; but the record does not show that there was proof, at any time, either before or after the order for publication, that he resided in the city or county of Rew York.

I do not see bow we can avoid the conclusion that the insolvent proceedings before the city judge must be reversed or quashed on this ground alone.

It is not necessary to examine or decide any other point in the case.

Barnard, J., concurred.

Clebke, J., expressed no opinion.

Proceedings reversed.