139 Misc. 508 | N.Y. Sup. Ct. | 1931
The plaintiffs and the moving defendants were and are non-residents. The cause of action against the latter arose outside of this State not later than April, 1924, and, under the.
Even if this may be treated as a case where there was fraudulent concealment of the breach within the meaning of the law of the foreign jurisdiction — which it does not appear to be — the cause of action would nevertheless be barred under the foreign law since the breach was discovered in April, 1924, more than six years prior to the commencement of the action. The litigation being between non-residents upon a cause of action barred by the Statute of Limitations of the jurisdiction where it arose, the moving defendants possess a valid defense to its maintenance here. (See Garrison v. Newman, 222 App. Div. 498.)
Assuming, moreover, that our own Statute of Limitations were to be held applicable, these defendants would nevertheless be entitled to prevail since the. plaintiffs knew of the defendants’ breach of contract more than six years before the action was commenced.
It may not be amiss to observe that under the most favorable view from the plaintiffs’ standpoint, they discovered the breach by May 21, 1924, whereas the action was not commenced until more than six years thereafter. As previously pointed out, the delivery to the sheriff was ineffectual under the Civil Practice Act as an attempt to commence the action in the light of the fact that defendants were non-residents. That section specifically requires delivery of the summons to the sheriff of the county where the defendant resides, which is obviously impossible where the defendant resides outside of the State. Furthermore, the given section provides that the summons must be delivered “ with the intent that it shall be actually served.” There can be no such intent where the defendant resides abroad.
The motion to dismiss as to the moving defendants must, therefore, be granted.