Burroughs v. Bloomer , 5 Denio 532 ( 1848 )

By the Court, McKissock, J.

The case piust be determined on the exceptions to the refusal of the judge to pharge the jpry as requested, and to the charge as ipadp. The defendant’s counsel requested the jpdgq to chapgp the jury thaf the visiting the city of New-York by the defendant as testified to by the witnesses was a re{prn tq the state within the meaning of the 27th section qf the statute of limitations; (2 R. S. 297;) and that it was sp frequent and constant that there was no period of absence to be deducted from the time United fqr bringing the actiqp, wbiph the. judge declined to do. This was in my judgmpnf entirely co crept. The issqe was spbstantjally on the pofnt whether the defendant had for a certain tipie before aqtiqn brought resided out of the state. The proposition pmhrqped in the request was, therefore, that the facts, pvpyed were equivalent to a rpsjdeiipp within thp state.. Bqt tjie evidence by no means gave any support to the idpa that the defendant was, after he remqved to New Jersey, a resident of New-York. Indeed ityyas., pq {hp contrary, plqfn that hp had .his domicil, was qn inhabitant of and actually resided in New Jersey all the while. A person may be ap inhabitant of ope pjace and a resident of another, but no man ever became the „ resident qf a plqpe by visiting even daijy and transacting busi ness there, while at the same time he habitually returned tc his habitation in another, like a weary bird to its roosting ground. And in the present case, giving credit to all that was said by defendant’s witnesses, the evidence was simply that he visited New-York from Newark, sometimes daily, sometimes monthly, and that these visits were public; and that during the latter part of the time he did business in New-York under the charge of another person. There was not even an essay to show he ever lodged there a single night. It is then most manifest that the instruction to the jury on the question of residence was properly refused.

But if it be said that the charge should have been given because the return of the defendant into the state was so frequent and notorious that he was at all times substantially subject to a service of process within the state, and therefore entitled to a verdict, the answer is that no such issue was presented. Yet waiving that, the section admits no such construction. Its latter clause was for the first time inserted in the statute in the revision of 1830. Until then, the only provision for suspending the time limited for commencing an action was in case of the defendant’s absence from the state when the cause of action accrued ; and the rule in that case, that on the first return to the state the time commenced running and continued to run, subject to no deduction for any other cause, is familiar to all. (1 R. L. 186, § 5.) The provision of the revised statutes suspends the operation of the limitation on other and different grounds. It provides that if after the cause of action shall have accrued the debtor shall depart from and reside out of the state, “ the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of the action.” There is nothing said, as in the former statute, in respect to the return into the state as the condition on which the time limited for bringing the action begins to run. It simply excludes the time of the absence from the computation. The expressions “and reside out of the state,” and “the time of his absence,” have the same meaning: they are correlative expressions. So that while the defendant in this case resided out of, he was absent from the state, and accordingly, until he again became a resident of the slate, the suspension of the operation of the statute continued. I have been thus careful to distinguish between the language and the meaning of the former and the latter provisions of the 27th section of the present statute of limitations, because, in the only judicial determination on the latter, of which I am aware, (Dorr v. Swartwout, U. S. C. C. 2d circuit, 5 N. Y. Legal Obs. 172,) it was held that where the defendant had become a resident in a foreign state after the cause of action accrued, and openly returned again to this state on a visit or upon business so as to be fairly subject to process, the statute from thence began to run against the plaintiff, and would continue until the time of the limitation expired, as it had not provided for a second departure. With great respect and hesitancy, I have arrived at the conclusion that this determination is an erroneous one, arising from giving too much weight to the supposed analogy between the old and the new provisions of the section. In the reasoning of that case it appears to be assumed that the time for bringing the action in both cases within the section shall be measured from the return to the state. That is true in the former case, while in the latter it is declared simply that “ the time of absence shall not be deemed or taken as any part of the time limited, leaving every subsequent departure and residence out of the state, to suspend the operation of the statute during its continuance. There is in the statute neither in direct terms nor by implication any condition as to removal from the state and residence abroad, except when they occur after the cause of action accrues. The words of the statute are too plain to allow the court to indulge in speculation as to the reason of the legislature in framing the two provisions. The judge was therefore correct in refusing to charge as requested.

But the judge charged that as for eight years while the defendant resided out of the state, he habitually came into it, sometimes once a month and sometimes once a week, it was for the jury to find whether the time he had spent in the state after the cause of action arose amounted to six years, and if it did, they should find for the defendant; to which the defendant’s counsel excepted. From what has already been remarked, this charge was incorrect. The statute ceased to operate as long as the defendant .continued to reside abroad. Besides, the rule laid down by the judge would be an impracticable one. The trial of such issues upon that construction of the statute would be infinitely more perplexing, and more to be deprecated than the prosecution of demands however stale. The disputes as to the number and duration of returns, and whether the plaintiff had fair opportunity to avail himself of them on each occasion, so as to prosecute the defendant, might frequently extend to as small periods as days through a quarter of a century. It would be better by far to repeal the provision than to permit it to give rise to such embarrassing questions. Still, although the charge was erroneous, the error was in favor of the defendant; he suffered nothing by it, and can take no advantage from it. The courts do not decide cases to determine theoretical principles, but to enforce and maintain the rights of parlies according to the rules of law. The judgment of the common pleas must be affirmed.

Judgment affirmed.