Taylor v. Syme (17 A.D. 517, 1897)

Van Brunt, P. J.:

The defendants, Frederick J. Syme and Columbus H. Allen (who was not served), were partners doing business under the name of Allen & Syme at 2STew Orleans, Louisiana. They leased a planta^ tion from one Eliza Kenner and gave their copartnership notes in payment for the rental. The notes in suit were the last two of the series. The lease contained a provision that if the lessees should be deprived of the use of the premises by and through any causes beyond their control or any fortuitous event they should be allowed a reduction or diminution of their rental pro tanto.

At the end of two years the firm of Allen & Syme failed and the creditors took possession of the property on the leased premises and seized the mules, machinery, etc. Immediately after this failure, the defendant Syme left New; Orleans and came to.the city of New York. The said Eliza Kenner brought this action, the summons being served on the defendant Syme in September, 1890. She died leaving a last will and testament, and M. Temple Taylor, as executor acting under papers purporting to be ancillary letters testamentary granted by the surrogate of .the county of New York, was substituted as plaintiff.

The defendant Syme claims that both notes were barred by the Louisiana Statute of Limitations; that the surrogate had .no jurisdiction to issue ancillary letters testamentary, and that he was released from the payment of the notes under the terms of the lease.

The Louisiana Statute of Limitations was put in evidence. It reads as follows: “ Art. 3510 (3505). Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by endorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by five years, reckoning, from the day when the engagements were payable.” It is well settled that the Statutes of Limitations of other States are not available in actions brought in this State in the absence of a statute making them so, and for a considerable period of time parties who happened to have either their persons or property within this State were subjected to actions in. this .State upon debts which had been barred by the Statute of Limitations of their place of residence. • In order to meet cases of this.description the law as embraced in section. 390 of the Code of Civil Procedure was