Bennett v. Watson

47 N.Y.S. 569 | N.Y. App. Div. | 1897

Barrett, J. :

. We agree with the learned judge at Trial Term that the Statute of Limitations did not run against the plaintiffs? claim during the period of Mr. Watspn’s absence in Florida and Europe. It is quite clear that during this period Mr. W atson was not a resident of this State, but resided first in Florida and later in Europe. The appeh lant’s contention is based upon an erroneous view of the meaning of the word “ -residence,” as applied to the Statute of Limitations. The appellant treats it as equivalent to “ domicile.” Section 401 of the Code, however, does not require a change of domicile to prevent the running of the statute. It may be that Mr. Watson’s domicile, remained unchanged during the -three years of his absence in Florida and Europe. But his residence was undoubtedly without this State; He was not a mere traveler as was .the case in Hart v. Kip (148 N. Y. 306). He went abroad for a special purpose, namely, the recovery of his son’s health/and his intention was to-remain abroad until that purpose was accomplished.' When he first left this State he hired a house for,himself and his family in Florida. Later he went abroad, spending two entire winters at ¡Nice, and one at Men-tone. He had no intention of returning to this country until his son regained his health or died. During all this period he had no house or abode of any kind in this State. He tells us that he had .an office here, but it appears that this was merely the office of the executors of his father’s estate, and that he personally transacted no business there. The case thus comes clearly within the rule laid down in Matter of Austen (13 App. Div. 247, 249) and cases there cited, where it was held that the word residence expresses the idea of an abode which may be temporary, but is not transient; that is, an abode where one settles down with some business or other object which requires it, and with the intention of remaining steadily in the place until such object is accomplished. Within this definition, the appellant was clearly a resident of Florida during the period of his sojourn there, and of Europe while he remained steadily there in the accomplishment of the object which took him there.

There is a class of cases in which domicile and residence are treated as synonymous, as where a statute prescribes residence as k qualification of the enjoyment of a privilege or the exercise of a franchise. There, as was said in People v. Platt (117 N. Y. 167), the word residence is equivalent to the place of domicile of the person who claims this benefit. (See, also, Dupuy v. Wurtz, 53 N. Y. 556, and de Meli v. de Meli, 120 id. 485.) Non-residence, however, is not the equivalent of non domicile when the word non-resident is used in statutes affording creditors a remedy hy attachment, or where residence without the State is required to limit the effect of a debtor’s absence upon the creditor’s ordinary remedies against him. In such cases it is sufficient to constitute. non-residence that the person absenting himself should have a settled abode without the State, with the intention of remaining there permanently, at least for a time (that is, not transiently), for business or other purposes. (Frost v. Brisbin, 19 Wend. 11.) Were an actual foreign domicile required, such statutes could easily be evaded. Indeed, the case would be a rare one when the creditor could make proof sufficient to secure the benefit of the statute.

There is another point in this case which is fatal to the defendant’s contention. It appears that the summons was served upon Hr. Watson’s co-defendant, Bartholow, upon the 29th day of July, 1891. This was within six years of the time when the cause of action accrued. The identity of the summons served upon Bartholow with that served upon Hr. Watson is questioned, but we think, upon a careful examination of the record, that the finding of the learned judge upon this head is amply .supported by the evidence. There can, in fact, be no doubt that the present action was duly commenced by the service of the summons in question upon Bartholow upon the 29th day of July, 1891. Such being the case, section-.398 of the Code of Civil Procedure is clearly conclusive upon the ■ appellant. The action is upon a demand against Watson and Bartholow jointly, and that section provides that an action is commenced against a defendant when the summons is served on him,, or on a co-defendant who is a joint contractor, or otherwise united in interest with him. This section is entirely clear and its effect is conclusive. This' has been repeatedly conceded in-cases under both the old and the present Code. (Merritt v. Sawyer, 6 T. & C. 160; Shaw v. Cock, 78 N. Y. 198; Howell v. Dimock, 15 App. Div. 102.)

It is true that a promise by one partner after dissolution will not . revive the debt as to his former copartner; nor will even payment upon account by such partner have that effect. This rule, however, proceeds upon the cessation of any presumed agency, and simply denies the power of a joint debtor. after dissolution to bind his co-debtor by any affirmative act of his. Here, however, the defendant who was served did nothing actively or affirmatively. He simply received the summons and the statute provided the effect.

The judgment should be affirmed, with costs.

Yak Bbunt, P. J., Rumsey, Williams and Patteksok, JJ., concurred. "

Judgment affirmed, with costs.