Holmes v. Hengen, 85 N.Y.S. 35

Holmes v. Hengen

85 N.Y.S. 35 | N.Y. Sup. Ct. | 1903

Greenbaum, J.

The conceded facts are that the defendant is the indorser before maturity of a promissory note made on August 13, 1890, in Omaha, ¡Nebraska, where all *522the parties to the transaction then resided. The note matured on August 13, 1891. The holder, maker and indorser were then still residents of ¡Nebraska. After maturity the defendant moved to the State of Texas, where he had a continuous residence for upward of four years. At the time of the commencement of this action he was and he still is a resident of this State. The note was assigned to plaintiff, a resident of this State, on November 30, 1902, by one Wallace, the original holder of the note, who has resided in ¡Nebraska since .the making of the note. The defendant pleads several statutes of limitations, setting up, among others, those in force in ¡Nebraska and Texas. Under the Code of Civil Procedure of ¡Nebraska, as construed by the Supreme Court of that State in the case of Webster v. Davies, 44 Neb. 301, a cause of action is barredwhere the defendant has resided in another State for the full period of limitation under the laws of that State, even though the cause of action arose in ¡Nebraska and the defendant resided in ¡Nebraska when it arose.” The facts in the case of Webster v. Davies, supra, are almost identical with those here presented on the question of defendant’s residence, and under that authority it is evident if this claim was barred under the laws of Texas that it was barred under the ¡Nebraska statutes. It was established that the Revised Civil Statutes of Texas provide that “ actions for debt where the indebtedness is evidenced by or founded upon any contract in writing” shall “ be commenced and prosecuted within four years after the cause of action shall have accrued and not afterwards.” It follows, therefore, that the four years’ residence of defendant in Texas would have been available as a plea in bar upon the note in ¡Nebraska. It only remains to determine whether the foregoing constitutes a defense in this State. It would seem that section 390a of the Code of Civil Procedure (L. 1902, ch. 193) is conclusive on this point. This section, which went into effect on September 1, 1902, before the assignment of the claim to plaintiff and before the commencement of this action, provides “ Where a cause of action arises outside of this state, an action can*523not be brought, in a court of this state, .to enforce said cause of action, after the expiration of the time limited by the laws of the state or country, where the cause of action arose, for bringing an action upon said cause of action, except where the cause of action originally accrued in favor of a resident of this state.” It does not appear that this section has heretofore received judicial construction, but it seems to be clearly applicable to the facts of the case in all essentials, and it follows that a verdict should be directed for the defendant. Both parties having moved for a direction, and decision having been reserved under stipulation, judgment is directed for the defendant, with costs.

Judgment for defendant, with costs.