p. 512Leopold Goldberg, Resp’t, v. Moritz Lippmann, App’lt.(City Court of New York, General Term,Filed November 27, 1893.)Headnote
1. Limitation—Pleading.An allegation in an answer to an action on a note that “the note fell ' due ” more than six years prior to the commencement of the action is a sufficient plea of the statute of limitations.
A person who has resided continuously under his true name in this state for six years prior to an action against him on a note or bill of exchange made in a foreign state can, by pleading and proof, avail himself of our statute of limitation. Section 390 of the Code, requiring a defendant to plead the law of limitation of the foreign state, applies to a non-resident who is sued here.
Appeal by defendant from judgment entered upon verdict returned against him.
M. A. Kurscheedt, for resp’t; Jno. J. Gleason, for app’lt.
The alleged cause of action is upon a promissory note, by setting forth a copy of same, made by defendant to order of plaintiff, dated “ Denver, August 27, 1883,”. and payable three months after date. The defendant by answer pleaded the statute of limitation of this state by alleging that this action was begun on Hovember 3, 1892, that for six years prior thereto he had continuously resided in this state, and that the note sued on fell due more than six years prior to commencement of the action. This cause of action accrued when the note fell due, and hence there is no merit in respondent’s suggestion, that the defendant must allege specifically that “ the cause of action accrued,” instead of that “ the note fell due,” more than six years prior to commencement of action. At trial defendant, at the very threshold of his defense, was prevented from proving his continuous residence in this state for more than six years, under a ruling that the law of the state of Hew York was not applicable,. but that the law of the state of Colorado was applicable, and to which he duly excepted.
Ho suggestion in justification of this ruling is made except in
p. 513respondent’s brief, that § 390 of the Code requires a defendant to plead the law of limitation of the foreign state, but this section by express terms applies to a non-resident defendant sued here to enable him to avail himself of his residence in the foreign state during the period of limitation there as a defense in the action against him here. But this defendant is not a non-resident and alleges six years continuous residence in this state, hence he plead properly by setting up the statute of limitation of New York, for the plaintiff sought his remedy here, therefore the defendant could avail himself of our statute of limitation, and had no concern whatever with the statute of the state where the contract was made. In the
Engel case, 102 N. Y., 400 ; 2 St. Rep., 56 , Judge Earl writing, the court of appeals held that the defendant, who was sued in this state upon a bill of exchange accepted by him in Vienna, Austria, could plead successfully his residence here for six' years, and our statute of limitation in bar of the cause of action, although he had absconded and fled from Vienna, and came and resided here under an assumed name for the purpose of concealing himself from his creditors. This decision in 1886 probably suggested the amendment of 1888 to § 401 of the Code, which now precludes a defendant who “ resides within the state under a false name ” from availing himself of our statute of limitations; but this, nor any other existing provision of the Code, disturbs the rule that a person who resides continuously under his true name in this state for six years prior to action against him on a note, bill of exchange or other causes of action enumerated in § 382, can by pleading and proof avail himself of our statute of limitation in bar of such cause of action. This defendant’s pleading entitled him to make proof of the facts pleaded, and it was error to prevent him from doing so at trial. Judgment reversed and new trial granted, with- costs to appellant to abide event-.
Newburger and McCarthy, JJ., concur.