Beebe v. Parker — 24 N.Y. St. Rep. 120

Majority

p. 120

Charles Beebe, App’lt, v. Samuel Webber Parker, Resp’t.

(City Court of New York,

General Term,

Filed February 26, 1889.)

Headnote

1. Practice—Non-resident— Code Crv. Pro., §§ 3160, 3268, 3269—Con STRUCTION OP.

The qualification imposed by section 3160 of the Code Civil Procedure, which provides that “a plaintiff in an action brought in the court, who has an office for the regular transaction of business, in person, within the city of New York, is deemed a resident of that city, within the meaning of sections 3268 and 3269 of this act,” is applicable to all non-residents of the county, whether they reside in other counties or states.

2. Statutes—How interpreted.

The office of interpretation is to bring a sense out of words, not to bring a sense into them.

3. Same—Code Crv. Pro., §§ 3160, 3268, 3269.

The words used in section 3160, Code Civil Procedure, are in no way to be confuted by the general provisions of sections 3268 and 3269.

4. Same—Non-residents—Attachment—Code Civ. Pro., § 3169.

The fact that a non-resident of the state who does business in the city of New York, is liable to attachment, is no argument against the construction here adopted.

Appeal from an order made at special term requiring the plaintiff, who resides at Orange, New Jersey, and has an office for the transaction of business in the city of New York, that he conducts in person, to file security for costs.

Warner & Frayer, for app’lt; P. B. Vermilya, for resp’t.

There is no statute requiring a non-resident plaintiff to file security for costs, except that contained in sections 3268 and 3269 of the Code, which are limited in their application to this court, as follows: “A plaintiff in an action brought in the court, who has an office for the regular transaction of business, in person, within the city of New York, is deemed a resident of that city, within the meaning of sections 3268 and 3269 of this act. Code, § 3160. Those sections, in referring to the courts of record, generally refer to “ non-residents of the state,” and in referring to this court, use the phrase “non-residents of the county,” the latter term being more comprehensive than the former, as the words “non-residents of the county” necessarily include all “ non-residents of the state,” while the latter phrase does not include the residents of other counties of this state.

The term non-resident of the county is, therefore, used in its most comprehensive and significant sense, and the qualification imposed by section 3160, is applicable, therefore, to all non-residents of the county, whether they reside in other counties or states. This is the construction placed on the act by the special term of this court in Wyckoff v. Devlin (8 Civ. Pro. R., 138), and is the correct interpretation. Glass v. Place, 5 Daly, 110 . It accords

p. 121

with the natural and obvious meaning, of the words employed, which should be taken without resorting to subtle and forced construction. Courts cannot supply supposed errors, omissions or defects. The office of interpretation is to bring a sense out of the words, not to bring a sense into them. McCluskey v. Cromwell, 11 N. Y., 593 .

The words used in section 3160, are plain and umambigous, are special in their nature and are in no way to be confuted by the general provisions of sections 3268 and 3289. (Potter’s Dwarris on Statutes, 273). It may well be that the legislature thought that a resident of Jersey City who invested his capital in business in the city of New York, should be as favorably considered, in respect to the right of prosecuting his demands, as the resident of any other county of this state (outside of New York city), so long as each conducted his business in that city in person. The fact that a non-resident of the state, who does business in this city, is hable to attachment (Code, § 3169), is no argument against the construction adopted. There is no reason why a resident of another state should contract bills to creditors resident here, and escape attachment against his just demands, because he has a place of business within this city. But where honest debts are owing to the nonresident doing business here, there is some propriety in allowing him the same facilities to collect them that are allowed to residents of other counties of the state similarly situated. The one is to protect our citizens against the frauds of non-residents. The other is to protect the non-resident against the frauds of residents here.

The moneys collected by non-residents doing business here will, if honestly applied, be devoted to paying debts contracted here. If not so applied, the creditor resident here has his remedy by attachment against the non-resident, and his place of business will not protect him from the writ. We cannot discover anything unreasonable or illogical in all this, and it may be that such was the legislative impression. At all events, this is the legal result of what has been done. It is quite competent for the legislature to give a person a constructive residence in one place for specified purposes, leaving his domicil unaffected as to others. The act was, therefore, a legal exercise of legislative power. The costs awarded against an unsuccessful plaintiff are, as a rule, not large, but comparatively small, and the probability of collecting them might be equally as good from a Jerseyman doing business here, as from a resident of an interior or remote county of this state doing a like business. For this one purpose of suing, both are made constructive residents of this city.

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But we need not search studiously for the motives that led to the law; it is on the statute book, is plain and unambiguous, and must be enforced. For these reasons the order appealed from must be reversed, with costs.