Bassett v. Bassett

55 Barb. 505 | N.Y. Sup. Ct. | 1870

By the Court, Ingraham, P. J.

There can be no doubt as to the sufficiency of the evidence to sustain the finding that the notes in suit were exchanged for notes received in trade, and "for blank notes of Peck & Co., signed by them and delivered, with authority to the defendants to fill up as they pleased. Charles Bassett testifies that the notes were given in exchange for trade notes and the notes of C. C. Peck & Co. signed in blank; and that the consideration of the notes in suit was the trade paper and the notes signed in blank. Isaac Bassett, while he says he don’t know that the defendants received anything on account of these notes, on cross-examination, says that “ the defendants received notes of Peck & Co. in blank, and that they were used by the firm to a considerable amount, and that the proceeds were used for their benefit.” Charles Bassett also states that Peck & Co.’s indebtedness to the defendants amounted to some $16,000, while their indebtedness would have amounted to $7000. "Without further evidence, it would have been difficult to sustain a finding that the notes in suit were merely accommodation paper. Aborn’s testimony to the contrary, is only a want of knowledge on the subject; while the testimony of the other witnesses is positive. The case in 3 Denio, 187, is not in conflict with these views, but holds that the notes are exchanged notes, if made to be negotiated and used.

The jewelry pledged as security for the notes was delivered hy Charles to the plaintiff to secure the payment of notes given for the benefit of Peck & Co., including the notes in suit. It was not to be used if the notes could be collected'of the makers. Ho demand was ever made, nor any consent given, at any time, that it should be disposed of for that purpose, prior to the bringing of the suit in which the order was made directing the sale of the jewelry and the appropriation of the proceeds. There was no obligation on the plaintiff to sell prior to that time, nor any duty owing by him to the defendants by which he could be held responsible for an omission to sell previous to such order of the court. If there was any responsibility, it was to Charles, and I think none to him, until he requested the sale to be made.

The remaining question is as to the statute of limitations. The evidence shows that the defendant Aborn left this State in 1854, and resided in Hew Jersey until 1864; but during that period was in Hew York daily attending to his business. The defendant claims that his daily coming to Hew York on business prevented the allowance of the time he resided in Hew Jersey from being considered a suspension of the running of the statute. The words of the statute are, “ if after the cause of action shall have accrued, [the debtor] shall depart from and reside out of the State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.” In Burroughs v. Bloomer, (5 Denio, 532,) which was a case similar to the present, the debtor removed to Hew Jersey and resided there, but had a place of business in Hew York, which he was in the habit of frequenting, sometimes monthly and sometimes daily. The judge charged that the jury were to find whether the time the debtor had spent in the State amounted in the aggregate to more than six years, and if so, to find for'the defendants. The Supreme Court held the charge to be too favorable to the defendant, and that the statute ceased to operate as long as the defendant continued to reside abroad, notwithstanding his return to the State on business. In McCord v. Woodhull, (27 How. Pr. Rep. 54,) it was held that a resident of Hew Jersey, who spent business hours daily in Hew York, could not claim the limitation during such residence. The case of Cole v. Jessup (10 N. Y. Rep. 96) arose upon demurrer, and is authority for the doctrine, that in a pleading it is enough to aver that the debtor left the State and resided out of it for a definite time, and that the action was commenced within six years after such return; and that successive absences may be accumulated and deducted.

[New York General Term, January 3, 1870.

The construction asked for by the' defendant is not consistent with the words of the statute, nor with the intent. The object of the exception is to give the plaintiff the whole of six years' residence within the State within which to commence his action. He is not obliged to follow the debtor to another State; nor is he called upon to watch him to ascertain whether he comes into the State for a temporary purpose, so long as his residence is elsewhere. It may also be said that it was intended to give the creditor control, as well over the person as the property of the debtor, by requiring a residence in the State to give effect to the limitation. This would not be the case if temporary return from, time to time could overcome the residence abroad.

The judgment should be affirmed.

Ingraham, Geo. G, Barnard and Brady, Justices.]