Costello v. Downer, 46 N.Y.S. 713

46 N.Y.S. 713 | N.Y. App. Div. | 1897

Parker, P. J.:

The facts averred in the reply in this case show that, on the day the note matured, the defendant was, and for upwards of a year had been, a resident of the State of New Jersey ; that during all that time, however, he had during business hours in each day attended at his office in the city of New York and there carried on his business. Such attendance was open and notorious, and seems to have been of such a character that the plaintiff, with reasonable diligence, would have had no difficulty in ascertaining that he could have been found and served with process there. And this condition existed for about eight years after such date, before this action was brought.

Conceding that under such facts we should consider the defendant as having been “without the State” at the time the cause of action accrued, I do not see how We can, under the decisions, escape the conclusion that he had more than six years before the commencement of this action returned to this State, within the meaning of the 1st clause of section 401 of the Code of Civil Procedure, in such a manner as to set the Statute of Limitations running.

It seems to be well settled that, under such a clause, a non-resident at the time the note matures does not have to move into and take up his residence in this State to set the statute running. An open and notorious coming into this State, so that the creditor, by the exercise of ordinary diligence, might cause process to be served upon him, is sufficient to set the statute running. (Randall v. Wilkins, 4 Den. 577; Palmer v. Bennett, 83 Hun, 220; Engel v. Fischer, 102 N. Y. 400, 404.)

The cases cited by the appellant’s counsel do not conflict with this conclusion. Burroughs v. Bloomer (5 Den. 532) was a case where the debtor departed from this State after the 'cause of action arose, and the decision, is based upon the. construction placed upon the 2d clause of : the statute as it then existed: Bassett v. Bassett (55 Barb; 518) and McCord v. Woodhull (27 How. Pr. 54) were both based upon the :shme authority and clause of the section. And in Bennett v. Cock (43 N. Y. 537) the decision proceeds upon the theory that the , defendant’s daily coming into the city to attend to his business set the statute running in 1ns favor, and that his daily departures and absences operated to stay it under the 2d clause of such section as it then stood. The case of Biker v. Curtis (17 Misc. Rep. 134) is based entirely upon the authority of this latter case.

The defendant in this case, therefore, having come into this State after the "maturity -of the note and set the statpte running-in his favor, it continued to run,-unless by some act of his within the.-provisions of the 2d clause of section 401-4- as.it existed at the time this action was-.commenced — he h'as stopped it running.

■ The 2d- blaiiSe-of- that section-then-provided-that “if, after a cause of action has accrued against the person, he', departs from-and resides without the Sta-te^ and remains continuously-absent therefrom- for-the space of one year or more,' * * <■* the-time of his absence * is not a part óf -the time limited,” etc;. It 'Will be noticed -that under this provision "the debtor must not only reside" out of the State-, after his departure, but must also remain continuously absent therefrom for the space of -one. year. Both horn-residence and continuous absence, for a, year must concur in order to stop the-running of the statute. (Hart v. Kip, 148 N. Y. 306.) In the case, before the debtor, after coming into the State and setting the statute running, the same -day departed therefrom, but he"-returned-the next day,' and soi departed one day and returned the next upon -each business day <for substantially eight years. If the clause of the section under consideration merely provided that liis departure and residence out of the State should operate to prevent the statute running while so absent', it woiild be easy to conclude'that the "defendant’s • absence while át his’ home "should not be -counted as any part of -the six years running -in' liis ■ favbl. Such' was the-, provision- of this clause when Burroughs v. Bloomer, Bassett v. Bassett and Bennett v. Book. (supra) were decided.

Construing the provision to mean-that successive absences-may be accumulated and -their aggregate deducted from the period of limitation, as was held in Cole v. Jessup (10 N. Y. 96), and such conclusion necessarily followed. But with the additional requirement which the section now contains, that he must also remain “ continuously absent therefrom for the space of one year,” those cases and others of like import cease to be authority. Although constantly a resident out of the State his daily return into it for the legitimate and only purpose of carrying on his business there rebuts the claim that he was “continuously absent.” Evidently that provision requires something more than a continued “ non-residence.” It must be continued “absence.” And, although it is not improbable that instances will arise where it will be difficult to determine whether the Legislature intended to include them within such provision or not, it seems too clear for discussion- that a non-resident who is daily present and carries on his business within this State is not continuously absent therefrom for the space of one year.

That the 2d clause -of this section is applicable to the case of a debtor who, "being a non-resident and absent when the cause of action accrues, subsequently returns to this State, sets the statute running and then departs again, is held in Cole v. Jessup (supra).

I am aware that, under this construction, the presence of the defendant in this State for the full period of six years has not been secured to this plaintiff, and that similar instances may frequently occur. But such condition seems to necessarily result from the comparatively recent requirement in the statute that the absence of the debtor must be continuous for the space of one year. However onerous upon -the plaintiff this construction may prove, we must assume that the Legislature has provided for all the exceptions which a sound public policy dictated and must administer the law as we find'it. (Engel v. Fischer, supra)

Our conclusion, therefore, is that the facts averred in the reply do not avoid the defense set up, and that at the time this action was commenced it was barred by the Statute of Limitations. The judgment of the Special Term was, therefore, correct and should be affirmed.

Judgrnent and order affirmed, with costs.

All concurred, except Herrick, J., dissenting.

Judgment affirmed, with costs.