Olcott v. Tioga Railroad
1857 N.Y. App. Div. LEXIS 204
N.Y. Sup. Ct.
1857
Check Treatment
By the Court, E. Darwin Smith, J.

Whether the statute of limitations is a good defense in behalf of a foreign corporation in an action upon contract, is the only point presented in this case for our decision. The referee has found, *157as a conclusion of law, that the plaintiff's debt is barred by the statute of limitations, and that the defendant was entitled to a nonsuit on that ground. His decision was expressly put upon the case of Faulkner v. The Delaware and Raritan Canal Co., (1 Denio, 441,) • in which the precise point held by the referee is distinctly decided, and we are now confessedly asked, by the counsel for the, plaintiff, to overrule that decision. If we were sitting in a court of review, the correctness of that decision, upon principle, would be a legitimate question for discussion and consideration. The case of Faulkner was decided in the old supreme court, about 12 years since. It was decided by a unanimous court, was acquiesced in then, and has been since, without debate or question, so far as we know," till the present occasion. This court, as now organized, is the supreme court still, with the same powers, and governed by the same rules and principles as the old supreme court under the former constitutions of this state. In the application of the principle of stare decisis we should regard the decisions of the supreme court of this state at any former period, as the decision of the same court in which we are now sitting. It becomes, therefore, an important inquiry, how far, and upon what principle, this court is at liberty to depart from the doctrine of stare decisis. Chancellor Kent lays down the rule as follows : “When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons and upon a clear manifestation of error ; and if the practice were otherwise, it would be leaving us in a state of uncertainty as to the law.'' (16 John. 402. 20 id. 722.) Sir William Jones also says : “Ho man who is not a lawyer would ever know how to act, and no man who is a lawyer would in many instances know what to advise, unless courts were bound by authority, as firmly as the Pagan deities were supposed to be bound by the decrees of fate.” (Jones’ Essay on Bail. 45.)

The 3000 cases overruled, doubted or limited in their ap*158plication, mentioned in Greenleaf’s Overruled Cases, indicate that the tendency to assert and to carry out what is supposed to he the right in point of principle, is much greater than that of abiding hy precedents and of adhering to decisions. And there is doubtless much greater danger of departing from the sound rule on this subject, in the present organization of this court, divided as it is into eight heads, than there was when the court possessed the unity of a single head, as under the former constitutions of the state. While with the larger number of judges, the press of business upon the court, and the multiplicity of decisions, the proportion of crude and hasty opinions will necessarily he increased; and while it is the duty of the judges to meet all questions upon principle, and discuss them with freedom and firmness, that justice and right may prevail, yet something, most obviously, should he deemed settled in this court. There should, at some time, in this court, he an end of discussion, when questions decided should he deemed at rest, until the decision is reversed in the court of last resort. Such, as a general rule, should he the case with all questions carefully, clearly and distinctly decided by the old supreme court upon full argument, and by any general term of this court as at present organized. There is, however, an obvious distinction between the cases where the point decided was not the leading or chief point in the cause; where it did not receive full discussion at the bar, or was incidentally decided, without full examination, and those cases where the point in question was singly presented, fully discussed hy counsel, and distinctly passed upon by the court. The case of Faulkner was one of the latter case. The question of the statute of limitations was the only one in the case. The point was distinctly presented on demurrer, unconnected with any other question. It was, we may presume from the character of the counsel employed, fully and carefully argued, and was distinctly and singly decided by the court, without dissent or objection, Such a decision should ordinarily tie followed, tintil reversed t>y the court of appeals.

*159[Monroe General Term, December 7, 1857.

In accordance with, this view, I think the judgment in this case should he affirmed, upon the principle of stare decisis. But as the case is one of great importance, and involves a large amount, I will add that I fully concur in the opinion of Judge Beardsley, in the case of Faulkner. TMs action is one of contract, upon bills of exchange, and was commenced September 19, 1853. At that time, by section 91 of the code, all actions upon a contract, obligation or liability, express or implied, were limited to six years. The only exception applicable to this class of actions is contained in section 100, which is as follows : “If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the times 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 the 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.”

By clear and necessary implication this section can only apply to natural persons. Hone others possess the power of locomotion. Hone others can be out of the state at one time and in it at another. Hone others can depart from and reside out of the state and return again to it. In respect to none others can the time of their absence be deducted from the time limited for the commencement of the action. The residence of a corporation is necessarily fixed in the state of its creation. It can have no residence elsewhere. (13 Peters, 519. Bank of Augusta v. Earle, 14 id. 129. Runyan v. Lessees of Coster, 2 How. U. S. R. 499.) If this section does not apply to corporations, then the general limitation of section 91 applies, without qualification, or restriction, to all actions upon contract, and is available to a foreign as much as to a domestic corporation. The judgment in this case should be affirmed.

Johnson, Welles and Smith, Justices.]