Costello v. Downer (19 A.D. 434, 1897)

Parker, P. J.:

The facts averred in the reply in this case show that, on the day the note matured, the defendant was, and for upwards of a year had been, a resident of the State of New Jersey ; that during all that time, however, he had during business hours in each day attended at his office in the city of New York and there carried on his business. Such attendance was open and notorious, and seems to have been of such a character that the plaintiff, with reasonable diligence, would have had no difficulty in ascertaining that he could have been found and served with process there. And this condition existed for about eight years after such date, before this action was brought.

Conceding that under such facts we should consider the defendant as having been “without the State” at the time the cause of action accrued, I do not see how We can, under the decisions, escape the conclusion that he had more than six years before the commencement of this action returned to this State, within the meaning of the 1st clause of section 401 of the Code of Civil Procedure, in such a manner as to set the Statute of Limitations running.

It seems to be well settled that, under such a clause, a non-resident at the time the note matures does not have to move into and take up his residence in this State to set the statute running. An open and notorious coming into this State, so that the creditor, by the exercise of ordinary diligence, might cause process to be served upon him, is sufficient to set the statute running. (Randall v. Wilkins, 4 Den. 577; Palmer v. Bennett, 83 Hun, 220; Engel v. Fischer, 102 N. Y. 400, 404.)

The cases cited by the appellant’s counsel do not conflict with this conclusion. Burroughs v. Bloomer (5 Den. 532) was a case where the debtor departed from this State after the 'cause of action arose, and the decision, is based upon the. construction placed upon the 2d clause of : the statute as it then existed: Bassett v. Bassett (55 Barb; 518) and McCord v. Woodhull (27 How. Pr. 54) were both based upon the :shme authority and clause of the section. And in Bennett v. Cock (43 N. Y. 537) the decision proceeds upon the theory that the , defendant’s daily coming into the city to attend to his business set the statute running in 1ns favor, and that his daily departures and absences operated to stay it under the 2d clause of such section as it then stood. The case of Biker v. Curtis (17 Misc. Rep. 134) is based entirely upon the authority of this latter case.

The defendant in this case, therefore, having come into this State after the "maturity -of the note and set the statpte running-in his favor, it continued to run,-unless by some act of his within the.-provisions of the 2d clause of section 401-4- as.it existed at the time this action was-.commenced — he h'as stopped it running.

■ The 2d- blaiiSe-of- that section-then-provided-that “if, after a cause of action has accrued against the person, he', departs from-and resides without the Sta-te^ and remains continuously-absent therefrom- for-the space of one year or more,' * * <■* the-time of his absence * is not a part óf -the time limited,” etc;. It 'Will be noticed -that under this provision "the debtor must not only reside" out of the State-, after his departure, but must also remain continuously absent therefrom for the space of -one. year. Both horn-residence and continuous absence, for a, year must concur in order to stop the-running of the statute. (Hart v. Kip, 148 N. Y. 306.) In the case, before the debtor, after coming into the State and setting the statute running, the same -day departed therefrom, but he"-returned-the next day,' and soi departed one day and returned the next upon -each business day