Tudor v. Ebner, 93 N.Y.S. 1067

Tudor v. Ebner

93 N.Y.S. 1067 | N.Y. App. Div. | 1905

Laughlin, J. :

This is an action to recover damages for false and fraudulent representations by the defendant, who was the president and manager of the Windham Bay Gold Mining- Company, concerning the assets and financial condition of the company, whereby the plaintiff was induced to purchase a large number of shares of its capital stock. The second defense, to which the demurrer was interposed, alleges that at all the times mentioned in the complaint and at the time of the commencement of the action the plaintiff and defendant were nonresidents of the State of Mew York, the former being a resident of Massachusetts, and the latter of the Territory of Alaska; that the cause of action alleged in the complaint does not involve the title to or the possession of real property situate within the State of Mew Y ork and did not accrue within two years prior to the commencement of the action. In the second defense the defendant sets- forth the provisions of the Statute of Limitations of Alaska, so far as material, which are contained in an act of Congress entitled “ An act making further provision for a civil government for Alaska, and for other purposes,” approved by the President on the 6th day of June, 1900. (31 U. S. Stat. at Large, 321 et seq.)

It is contended by the appellant that the six years’ Statute of Limitations contained in subdivision 4 of section 6 of title 2 of the act (Id. 334), which, in connection with sections 3 and 4 of the title (Id.), provides that the period prescribed for the commencement'of, a civil action shall be six years after the cause of action shall have accrued where it is “an action for taking, detaining or injuring personal property, including an action for the specific recovery thereof,” is applicable. The respondent contends, that the period of limitation is prescribed in subdivision 1 of section 8 of title 2 of the statute (Id. 335), which prescribes a limitation of two years for the commencement of “ ah action for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not herein especially enumerated.”

The theory of the appellant seems to be that the Statute of Limi-. *564tations of' Alaska was taken from our Code of Civil Procedure and that subdivision 10 of section 3343 of our Code of Civil Procedure which provides that “ an ‘ injury to property ’ is an actionable act-whereby the estate of another is lessened, other than a personal injury, or the breach of a contract,” not copied into the act'of Congress, was but a mere embodiment of the common-law rule and that, therefore, the Statute of-Limitations applicable to Alaska should be construed in the light thereof. The assumption that these provisions of the act of Congress were based upon- oür Code of Civil Procedure is erroneous. So far as material here they were copied verbatim, with the exception of a single wovrd not material to the present inquiry, from the Code of Civil Procedure of Oregon. (Heid v. Ebner, 133 Fed. Rep. 156; 33 Cong. Rec. [56th Cong., 1st Ses., pt. 3] p. 2663.) Doubtless the Code of Civil Procedure of Oregon was in the main based on the Code of Proced/wre of FTew York. The latter, so far as it related to limitations of actions at law, was adopted almost verbatim by. the fifth Legislative Assembly of the Territory of Oregon in 1854 (Stat. of Oreg. of 1854, pp. 170-173), and for this the State Legislature of Oregon in 1862 substituted a more extensive statute.known as the Code of Civil Procedure relating, among other things, to limitations of both actions at law and suits in equity.' (Hepb. Code Pl. 101.) There has been no judicial- construction of the provisions of ■ the act of Congress under consideration by the courts of Alaska or of the provisions of the Code of Civil Procedure of Oregon from which they were taken by the courts of that State.

It is manifest that neither the provisions of our Code of Civil Procedure nor the judicial construction thereof can aid in the determination of the question presented; but a consideration of the provisions of our Code of Procedure which were substantially copied1 into the Oregon statute and of any decisions construing the same may shed light on the question. In our Code of Procedure there was no provision corresponding to subdivision 10 of section 3343 of our Code of Civil Procedure defining an injury to property; nor was there in the corresponding sections of the old .Code, relating to the limitations in question,, the phrase “ injury to property.” Our Code of Procedure, instead of providing a limitation of' six years for an action “ for taking, detaining or injuring personal property, *565including an action for the specific recovery thereof,” as is provided in subdivision 4 of section .6 of title 2- of the act of Congress herein quoted, provided in subdivision 4 of section 91 a limitation for actions “for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property.” This provision of our Code of Procedure manifestly did not include all actions for injuries to personal property in the broad sense hut was confined to actions for injuries to goods or chattels. Subdivision 5 of section 91 of our Code of Procedure prescribed a limitation of six years for “ an action for criminal conversation or for any other injury to the person or rights of another, not arising on contract and not hereinafter enumerated,” and subdivision 1 of section 93 of said Code of Procedure prescribed a limitation of two years for “ an action for libel, slander, assault, battery or false imprisonment.” The provisions of the Oregon statute of 1854 (p. 171, § 4, subd. 5; Id. § 6, snbd. 1) corresponding with said subdivision 5 of section 91 and subdivision 1 of section 93 of our Code of Procedure appear to have been consolidated in subdivision 1 of section 8 of the Code of Civil Procedure of Oregon (as amd. by Laws of Oreg. of 1870, p. 34, § 9) which relates to limitations of two years and was copied into subdivision 1 of section 8 of title 2 of the act of- Congress for Alaska, except that the word “ seduction ” was substituted for the words “ criminal conversation.” Subdivision 6 of section 91 of our Code of Procedure, providing a limitation of six years -for actions for relief on the ground of fraud, relates to suits in equity and not to actions at law (Miller v. Wood, 41 Hun, 600; affd., 116 N. Y. 351), and it was not adopted in Oregon or for Alaska.

We are of opinión, therefore, that subdivision 4 of section 6 of the Code of Civil Procedure of Oregon and of subdivision 4 of section 6 of title 2 of the act of Congress prescribing the same for Alaska was intended, like subdivision 4 of section 91 of our Code of Procedure, to prescribe a limitation, of six years for an action for taking, detaining, or injuring goods or chattels, including an action to replevy the same, and that it was not intended to embrace an action for an injury to personal property in the broad sense which would include an action for damages for fraud. It "follows, if this view be correct, that this action falls within the provision of subdivision 1 of section 8 of title 2 of the act of Congress which *566is to be construed • literally as embracing any action “ for ■ any injury to the person or rights of another, not arising on contract,” and not .therein specially enumerated, and not, as claimed by the appellant, according.to the rule of ejusdem generis and confined to personal rights as distinguished from property rights. There is no merit in the contention that the defense ■ of the two years’ Statute of Limitations is insufficiently pleaded. The Statute of Limitations of two years and the facts rendering it- applicable are set up in the separate defense, followed by the allegation that the action was not commenced within two years after the cause of action accrued. The intention of the defendant to plead the two years’ Statute of Limitations as a bar to the action thus sufficiently appears and it was not essential that it should have been so characterized.

It follows, therefore, that the interlocutory judgment should he affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.