Randall v. Wilkins

4 Denio 577 | N.Y. Sup. Ct. | 1847

By the Court, Jewett, J.

The question to be determined is, whether the court below gave a correct construction of the following provision of the statute of limitations: “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.” (2 R. S. 297, § 27.) It is not claimed that this statute began to run, until the defendant came into this state at the city of Buffalo, in the year 1838, or 1839 ; and it seems to be conceded by the counsel for both parties, that at that time the running of the statute against the plaintiff’s demand commenced. The point in controversy is narrowed down to this: whether the time, during which the defendant, after that, was out of the state, and a resident of Canada, is to be deemed or taken as any part of the time limited for the commencement of the suit.

On the part of the defendant it is insisted that the statute having began to run by the defendant’s coming into the state, the subsequent absence of the defendant did not prevent its continued running, and so the court below charged the jury. It is urged that the case of Fowler v. Hunt. (10 John R. 464,) and the case of Larzalere v. Long, of which we are furnished with a manuscript opinion, are decisive of the question. The saving clause of the act of 1801, (1 R. L. 186, § 5,) was as follows : “ And if any person against whom any cause of any such action shall accrue, shall be out of this state at the time the same shall accrue, the person who shall be entitled to such action shall be at liberty to bring the same within the times respectively above limited, after the return of the person so absent, into this state.” In Fowler v. Hunt, to which I have referred, this court held under this statute, that when a person residing out of this state contracted a debt, and afterwards came into this state, after the action had accrued, publicly, and in such manner that the creditor, with ordinary diligence and due means, might arrest him, it was a return into this state within the meaning of that proviso, and that the statute began to run from the time of such return. That was the only point involved in the case of Larzalere v. Long, as appears from the opinion of Ch. J. Nelson. That case was governed by the revised statutes, and the construction which the court gave to the first branch of the 27th section, is the same which was given in this case by the court below. I fully concur in the principle of these cases. The same construction is supported in White v. Bailey, (3 Mass. R. 271,) and Little v. Blunt, (16 Pick. 359.)

The second branch of the section under consideration contains a new and additional exception to the running of the statute, applicable only to cases of a departure from the state after the accruing of the cause of action. But it does not aid the plaintiff in the slightest degree. The new provision is limited to cases where the statute had commenced running, prior to the departure or absence of the defendant out of the state. The first clause, as also the former statute, applied solely to cases where, at the time the action accrued, the defendant was out of the state. The object of the second branch of the section was to provide, merely, that when the defendant departed from and resided out of the state, after the action accrued, the time of his absence should not be taken as any part of the time limited for the commencement of the action. His return to the state where he was a non-resident at the accruing of the cause of action, puts the statute in motion; after which there is i o subsequent saving applicable to that case. The court below was clearly right in its construction of the statute.

Judgment affirmed.