Utah National Bank v. Jones — 109 A.D. 526

Majority

p. 526

Utah National Bank, Respondent, v. Addison B. Jones, Appellant.

First Department,

December, 1905.

Headnote

Foreign Statute of Limitations— Code of Civil Procedure, section 390, construed —when answer Of ñon-resident not sufficient to make foreign Statute of Limitations available.

Whema promissory note payable on demand was, delivered and made payable in the State of Utah, and there is no allegation in the makerís answer that at the time the cause of action accrued on such note he was a resident of any other State, the presumption is that at such time he was a resident of the State where the noté was payable,

Section 390 of the Code of Civil Procedure of New York, which allows a nonresident, when sued in this State' by another non-resident upon a cause of

p. 527

action not involving the title to real property within the State, to plead the Statute of Limitations authorized “ by the ¡laws of his residence,” means such • residence at the time the cause of action accrued and not the residence at the time the action is brought.

Hence, when the note in suit was delivered in and was payable in Utah, and the defendant only alleges that fdr two years prior to the commencement of the action he was a resident of California and that at said time neither he nor the. plaintiff was a resident of New York, he cannot avail himself of the Statute of Limitations of California which' requires an action on such instrument to be brought within two years from the time the cause of action accrues, for he has not shown himself to have been a resident of California at the time the cause of action accrued, as required by the New York statute aforesaid.

Appeal by the defendant, Addison B. Jones, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the defense contained in th.e defendant’s answer.

Jay E. Whiting, for the appellant.

Charles Thaddeus Terry, for the respondent.

Tills action was brought to recover the amount of a promissory note executed and delivered in the State of Utah, and by its terms made payable there.

The defendant pleaded the Statute of Limitations, alleging for that purpose that at the time of the commencement of the action, and for two years immediately prior thereto, he was a resident of the State of California; that by sections 335 and 339 of the Code of Civil Procedure, of that State, an action founded upon an instrument in writing executed out of the State must be commenced within two years from the time when the cause of action accrued ; and that neither the plaintiff nor the defendant is now, ór was at the commencement of the action, a resident of the State of New York.

The plaintiff demurred to the answer upon the ground that the facts stated did not constitute a defense to the action. The demurrer was sustained and defendant has appealed.

The note in question was made and delivered bv the defendant

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to the plaintiff-in the State of Utah, and was .payable one day after. date in that State, and there dishonored when- presented for payment at maturity. Section 390 of the Code of Civil Procedure, of the State of New York provides as follows: “Where a cause of action which does not involve the title to or possession of real'property within- the State, accrues against a person who is not them a resident /of the State, an action cannot be brought' thereon in a court of the State against him or his personal representative after the expiration of the time limited by the laws of his residence for bringing a like action, except by a resident of the State and in one of the following cases.” ' Then follows a description of the cases excepted from the operation of the section, which are not here of importancé.

The sole question presented for determination is whether the words “laws of his residence” used in the section refer to the residence of the debtor at the time the cause of action accrued, or to the time when the action was commenced. If to the former, then the. answer does not state a defense, and the demurrer Was properly sustained; if to the latter, then the demurrer was improperly sustained, because the action could not he maintained in the ■ State of .California.

I have been unable to find any authority of the .State of New York bearing directly upon the question, but a careful consideration of the section has led me to the conclusión that what the. Legislature intended was that a non-resident, when'sued in this State by another non-resident, upon a cause of action which accrued without . the State, could plead here the -Statute of Limitations, if the statutes of the State in. which he resided at the: time the cause of action accrued would be a bar. to the maintenance of the action. This conclusion seems necessarily to follow from the wording of • the section of the Code above cited/ which gives a non-resident the right to here interpose such defense. The phrase “ not 'then a resident of the State ” must be construed with the other phrase “ the laws of his residence.” The two phrases are in the same sentence.' The word. “ then ” in the first phrase obviously refers to the point' of time referred .to immediately before, this phrase in the section, -viz:,' the time when the cause of action accrued. If this be true, and I do not think there can be any serious question about it, then the

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following phrase “ laws of his residence ” — there being nothing in the Sentence to indicate to the contrary — must refer to the same time. This is the simple and natural construction and gives effect to every word in the sentence. The phrase “ laws of his residence,” therefore, means the law of his residence at the time the cause of action accrued and not the time when the action was commenced. To give it the latter construction a defendant might invoke the benefit of as many different Statutes of Limitations as there are States in the Union, if he happened to reside in any one of them at the time the action was commenced, which would be an unnatural and illogical construction, and I cannot believe the Legislature ever intended such result.

This view is sustained by Aultman & Taylor Co. v. Byrne ( 79 Fed. Rep. 238 ), in which the court held that the phrase “ laws of his residence ” means law of his residence at the time the cause of action accrued and not at the time of the commencement of the action.

The note in question, as already said, was given in- the State of Utah and by its terms there made payable. There being nothing to show to the contrary, the presumption is that the defendant was then, and at the time of the maturity of the note, a resident of that State, and there being no allegation in the answer that he was a resident Of the State of California at the time the cause of action accrued, he is not in a position to invoke the benefits of the statutes of that State, and the facts pleaded by him do not constitute a defense.

The judgment appealed from, therefore, must be affirmed, with costs, with leave to the defendant to serve an amended answer upon payment of the costs in this court and in the court below.

O’Brien, P. J., -Patterson, Clarke and Houghton, JJ., concurred.

Judgment affirmed, with costs, with leave to defendant to serve amended answer on payment of costs in this court and in the court below.