175 A.D. 372 | N.Y. App. Div. | 1916
The action was commenced January 26, 1916, and was upon a judgment recovered against the defendant on April 1, 1895, in the Supreme Court of this State. The answer sets forth as a defense that the action was not commenced within twenty years from the time when the parties recovering the judgment were first entitled to a mandate to enforce it. The defendant, in 1899, went to Alaska and remained there between four and five years, returning to this State and again in 1909 removed to New Jersey, remaining there until July, 1911.
The sole question presented on the trial and on this appeal is whether the exceptions contained in section 401 of the Code
In our opinion section 401 of the Code of Civil Procedure does not apply to section 376; therefore, the payment of the judgment in suit was conclusively presumed, and the absence of the defendant from the jurisdiction did not extend the term beyond the twenty years.
The judgment should, therefore, be reversed, with costs to the appellant, and the complaint dismissed.
Clarke, P. J., Scott, Smith and Davis, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.