Power v. Hathaway

43 Barb. 214 | N.Y. Sup. Ct. | 1864

By the Court,

E. Darwin Smith, J.

In the findings of the learned judge who tried this cause at the circuit without a jury, it is stated that the defendant received the money 'for which the action is brought on the 28 th day of June, 1855, and this action was commenced on the 16th day of May, 1862; also that the plaintiff and defendant then were, and have ever since been, residents of the state of Michigan. The single question presented for our decision is, whether the debt is barred by the statute of limitations. The defendant has pleaded the statute of limitations of this state, and also that of the state of Michigan, which is the same as ours, in substance and effect.

It is a settled principle of international law, that all suits must be brought within the period prescribed by the local laws of the country where they are brought. The lex fori governs all questions arising under the statutes of limitations of the various states of this country. (Story’s Conflict of Laws, § 577.) It follows that we can not give effect to the statute of limitations of the state of Michigan, though it is clear, as it is in this case, that the plaintiff’s claim is utterly barred by that statute, and that such must have been the decision of the courts in that state. The case of Olcott v. The Tioga R. R. Co. (20 N. Y. Rep. 224,) settles the law in this state, that a defendant in a personal action, resident abroad, can not avail himself of the statute of limitations of this state till he has returned to and actually been a resident of the state and subject to process of our state courts for the period of six years. In the opinion of Judge Denio in that case, he says: “ If the debtor, being an individual, resided out of this state when it [the cause of action] accrued, no period, however great, will bar the claim while he continues so to reside.” But, in that case, as the plaintiff was a citizen of this state, and it was said to be the policy of the statute of limitations not to compel a creditor to pursue his debtor in a foreign jurisdiction, but to give him the period fixed by the statute for the prosecution of his debt in the state of his own residence, it is urged that a distinction is to be made between that case and the present, inasmuch as in this case both the plaintiff and defendant, at the time when the right of action accrued, were, and ever since have, been, residents of the state of Michigan. But this distinction can not be maintained. It is repudiated, in effect, in the case of Olcott v. The Tioga R. R. Co. In that case Judge Denio refers to and sanctions those cases where the plaintiffs as well as the defendants were non-residents of the state when the cause of action accrued and where the debt was barred by the law of the place where the parties at such time resided. The cases are those of Ruggles v. Keeler, (3 John. 262,) where the debt was barred by the statute of limitations of Connecticut ; Dwight v. Clark, (7 Mass. Rep. 516,) where likewise the debt was-barred by the statute of the same state; and Bulger v. Roche, (11 Pick. 36.) In this last cited case the debt was contracted in Nova Scotia, both the plaintiff and defendant were residents of Nova Scotia, and the debt was confessedly barred by the law of that province. Chief Justice Shaw said the question was “whether a plaintiff, a subject of a foreign state, can maintain an action against a defendant who is a subject of the same foreign state, upon a cause of action barred by the statute of limitations of the state of which they were respectively subjects, and where the cause of action accrued.” It appears in the case that the parties both remained in Nova Scotia till the time of the limitation of the statute applied. The statute of Massachusetts contained the exception in favor of the plaintiff, “beyond the sea,” contained in the 7th section of the statute of James. The court held that “beyondthe sea” should be understood to be without any of the United States; and that the plaintiff being out of the state was within the exception, and that the proviso relating to the defendant also excluded the operation of the statute, he being also out of the state. This case, in its facts and principles, is like th present one, entirely, in the most favorable view of the case, for the defendant. And the case of Olcott v. The Tioga Rail Road Co., (supra,) affirms it to be good law, and virtually decides that the statute of limitations is in no shape available as a defense to the defendant in this action. Our statute, it is true, contains no such exceptions in favor of the plaintiff’s residence as that contained in the Massachusetts statutes, but the exception in relation to defendants is the same. Under our statute, the only question is whether the defendant has been within the state and amenable to process of its courts for six years before the commencement of the suit. If so, the statute is a complete defense, except in cases of special disabilities specified in the 101st section of the code in favor of the plaintiffs. Unless the plaintiff labors under some one of the disabilities specified in that section he must commence his suit within the time limited in the statute for the several causes of action therein mentioned, where he may chance to reside, whether a citizen of the United States or an alien. The defendant therefore is clearly not entitled to the benefit of the statute of limitations of this state.

[Monroe General Term, December 6, 1864.

The action, I think, could be brought in severalty by' either of the legatees joining in the power of attorney to the defendant. Their claims were several and not joint, and each was entitled to payment from the defendant, when the latter received the money. The suit was maintainable, too, without any demand before' suit brought. The money for which the action was brought was received by the defendant to the plaintiff’s use, and it was his duty to have paid it to the plaintiff and. remitted it to him. In such case, no demand is necessary, in order to maintain the action. (Stacy v. Graham, 4 Kern. 496.) I think the judgment below should be affirmed.

Judgment affirmed.

Welles, E. D. Smith and Johnson, Justices.]