Palmer v. Shaw

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

This is an action upon a promissory note executed^ in the State of New York. The note was due on the first of January, 1856, and the suit was commenced on the eighth of January, 1859. The defense is the Statute of Limitations. The defendant was not in this State when the cause of action accrued, but arrived here on the twenty-eighth of March, 1856, and remained until the twentieth of June, from which time he was absent until the fourteenth of February, 1857. The plaintiff resided in New York, and was fully informed of the movements of the defendant. There was some evidence tending to show that the defendant only came to this State in 1856, for a temporary business purpose, and that his intention was to return to New York and form a partnership with the plaintiff, in accordance with a previous arrangement upon the subject. The question is, whether the statute commenced running at the time of the arrival of the defendant in 1856.

By the first section of the Limitation Act of 1855, it is provided that suits of this character shall be commenced within two years after the accruing of the cause of action; but the effect of the general language used in this section is controlled and limited by the provisions of the twenty-second section of the Act of 1850, which reads as follows: “ If, when the cause of action shaE accrue against a person, he is out of the State, the action may be commenced within the term herein limited after his return to the State; and if, after the cause of action shaE have accrued, he depart the State, the time of his absence shaE not be part of the time limited for the commencement of the action.” (Wood’s Dig. 48.)

The Court below instructed the jury to find for the defendant, if they believed, from the evidence, that he had been in the State two years since the maturity of the note. This instruction was based upon a literal interpretation of the section above quoted, and although it [96]may not have been technically correct, the defense was clearly made out, and the plaintiff is not entitled to a reversal upon a mere technical error, by which he could not have been prejudiced. There was neither fraud nor concealment in the conduct of the defendant, and we do not see how the circumstance of his anticipated return to New York can avail the plaintiff. If he had remained here, there could be no question as to the time at which the statute commenced to run, and we do not think that there is anything in the facts of this case to justify us in arriving at a different conclusion upon that subject. The plaintiff cannot claim that the time between the twenty-eighth of March and the twentieth of June was insufficient for the commencement of the suit, nor can he say that he was ignorant of the movements of the defendant, for the contrary is shown, and these movements were open and public. The case is clearly within the statute, and the proposition contended for by the appellant is not sustained by any of the authorities cited.