Cole v. Jessup, 2 Barb. 309

Cole v. Jessup

2 Barb. 309 | N.Y. Sup. Ct. | 1848

By the Court, Willard, J.

By the 27th section of the article of "the revised statutes relative to the time of commencing actions for the recovery of any debt or demand, or for damages only, (2 R. 13. 297,) it is thus enacted : “ If at the time when any cause of action specified in this article, shall accrue against . any person, he shall be out of this state, such action may be commenced within the terms herein respectively limited, after the return of such person into this state; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this 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.” The former part of this section is copied from the 5th section of the old statute of limitations, (1 R. L. 186,) which latter was copied from the statute of Ann, and saves the operation of the statute, if the party shall be out of the state, at the time the cause of action arises against him. Under this 27th section, the statute did not begin to run until after the return of the defendant into this state ; but when once it began to run, it was not impeded by any subsequent disability. (Peck v. Randall, 1 John. Rep. 165. 13 Id. 513. 15 Id. 169.) Under the former statute, it was held that the word return applies as well to persons coming from abroad, where they had resided, as to citizens of this state, going abroad for a temporary purpose and then returning. (Ruggles v. Keeler, 3 John. Rep. 267. Fowler v. Hunt, 10 Id. 464.) And in Fowler v. Hunt, it was adjudged that the return within this state, that would set the statute of limitations in motion against a demand, must be a return so “ public, and under such circumstances, as to give the creditor an opportunity, by the use of ordinary diligence and due means, of arresting the debtor.”

The latter clause of the 27th section is new, and was intended to give the creditor, in case the debtor, after the statute had commenced running, should depart from and reside out of the state, the same time within which to institute a suit after the return, as remained unexpired at the time of the debtor’s departure. The former rule, that when the statute commenced running, it continued to run, was so far modified, that if, after *314the accruing of the cause of action, the debtor departs from and resides out of the state, the time of his absence shall not be taken as part of the time limited for the commencement of the suit.

If we test the rebutter by these principles, it is clearly bad. It asserts that the defendant, at the time when the cause of ac-. tion accrued, resided out of this state, and still continues so to reside, to wit, at Canada; that On the 1st of September, 1837, he returned publicly to this state, and that the action was not commenced within six years from such return. The objection is that it is not averred that the return was under such circumstances as to give the creditor an opportunity, by the use of ordinary diligence and due means, of arresting the debtor or of otherwise commencing a suit against him, nor that he had notice of the return. The return may have been on Sunday, and the defendant may not have remained within the jurisdiction of the state a single hour. The general rule, with respect to the necessity of averring notice, is, that when the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the party pleading it, than of the adverse party, notice thereof should be averred. (1 Chit. Pl. 320, and cases cited.) This is especially the rule where the party pleading is to gain, and his opponent to lose, by the happening of the event pleaded, if the latter neglects to move after the contingency has occurred. The return into this state was peculiarly within the defendant’s knowledge, and it was an event which, if brought to the plaintiff’s knowledge, set in motion the statute of limitations against his debt. Notice of it should have been averred. Without considering other defects in the pleading, this is fatal.

The defendant’s counsel insists that the surrejoinder of the plaintiff is bad. It is conceded that substantial defects in the pleading of cither party are open to animadversion on this demurrer. The main objection to the surrejoinder is, that it sets up a second departure of the defendant from this state, and residence abroad, and return into the state, and avers that the suit was brought within six years next after the cause of action *315accrued, exclusive of the time the said defendant was absent. The pleading is based upon the assumption that successive absences may be accumulated together and deducted from the period that has elapsed since the cause qf action accrued. This I apprehend cannot be done. The statute is satisfied by deducting the first absence after the cause of action has accrued. If the defendant returns under such circumstances as to set the statute in operation, it continues to run, notwithstanding any subsequent departure of the debtor. With respect to every departure and return, after the first, the case rests on the same footing with analogous cases prior to the revised statutes. This view of the statute was taken by Mr. Justice Nelson in the circuit court of the United States, in Dorr v. Swartwout, (5 Legal Observer, 172.) The only difference between that case and the present is, that the question in the former arose upon the evidence, and in this upon the pleadings. But the principle is the same in both. For this reason, therefore, the surrejoinder is bad in substance.

The rejoinder to the second replication is obnoxious to the same objection which is fatal to the rebutter. It does not aver that the defendant returned into this state under such circumstances as to enable the creditor to institute proceedings against him as required in Fowler v. Hunt, (supra ;) or that the plaintiff had any notice of such return. The defendant may merely have crossed the centre of the St. Lawrence river, at Brockville, on Sunday, and returned the same day.

The second replication is good in substance, and as all the defendant’s subsequent pleadings are bad, the plaintiff is entitled to judgment, without considering the objection to the second plea. The second plea, however, is bad in substance, for tendering, as it does, an immaterial issue. (Swift v. Vaughn, 6 Hill, 488. Gould’s Pl. 319.)

The plaintiff is entitled to judgment on the demurrer—with leave for the defendant to amend his rejoinder on payment of costs.(a)

See Didier v. Davison, (2 Barb. Ch. Rep. 477.)