Hart v. Kip
| Decision Date | 28 January 1896 |
| Citation | 148 N.Y. 306,42 N.E. 712 |
| Parties | HART v. KIP. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, First department.
Action by Peter Hart against Isaac L. Kip. From a judgment of the general term (26 N. Y. Supp. 522) affirming a judgment for plaintiff, defendant appeals. Reversed.
Isaac L. Miller, for appellant.
John R. Farrar, for respondent.
The plaintiff has recovered upon a claim for services as janitor of a building belonging to the defendant. It is alleged that the services commenced May 1, 1879, and continued till March 1, 1890, when they terminated. The services were rendered, as the plaintiff claims, under an agreement between the parties whereby the plaintiff was to be paid $20 per month. This action was commenced on the 17th of February, 1893, and one of the defenses interposed is the statute of limitations. There was also a general denial, and an allegation of payment. The plaintiff, during all the time, had apartments in the building without rent, but the defendant denied that he had employed him as the janitor, or that he owed him anything for services. From the plaintiff's own statement, he made no demand of the defendant for any compensation for his services during a period of nearly 14 years, though his pecuniary circumstances were such as would naturally stimulate him to become possessed of the fruits of his labor. On the supposition that the plaintiff had a valid claim against the defendant for his monthly wages, it is somewhat difficult to understand his forbearance to even ask for their payment. But the referee has given credit to the plaintiff's testimony, and the general term has approved his findings, and hence we have no right to inquire into the merits of the claim. The defendant's testimony is so general, and his silence as to the exact nature of his defense, whether payment or the absence of any obligation to pay, so inscrutable, that the referee had but little to act upon save the testimony of the plaintiff, which we cannot say that he was bound to discredit.
But we think that the learned court below and the referee failed to give proper effect to the defense of the statute of limitations. As to any claim that accrued to the plaintiff more than six years prior to the commencement of the action,-that is to say, prior to the 17th of February, 1887,-the statute was, prima facie, a bar. In order to avoid this, in whole or in part, the plaintiff proved, and the referee found, that the defendant was in Europe from May 28, 1890, to November 23, 1892. It appears that he went to Europe frequently during the period covered by the plaintiff's claim, but on this occasion he was absent longer than usual. During all this time, and for many years before, the defendant had a residence and place of business in the city of New York, and on the bare proof that the defendant on this occasion went to Europe and remained absent for about two years and a half, the referee made a finding that he resided out of this state. Neither the evidence nor the finding discloses in what particular part of the world, outside this state, the defendant resided during his absence; and, upon the assumption that he was a mere traveler, as he doubtless was, it would be impossible to do so. Upon these facts it was found, as a conclusion of law, that the operation of the statute upon the plaintiff's cause of action was suspended during plaintiff's absence, under section 401 of the Code, which reads as follows: ‘If after a cause of action has accrued against a person he departs from and resides without the state and remains continuously absent therefrom for one year or more, * * * the time of his absence * * * is not a part of the time limited for the commencement of the action.’ It will be observed that, in order to bring a case within this section, as amended in 1...
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Loken v. Magrum
...language of the 1888 New York statute is identical to the current language of Section 28-01-32, N.D.C.C. (see fn. 7). In Hart v. Kip, 148 N.Y. 306, 42 N.E. 712 (1896), the New York Court of Appeals held that in order to suspend the statute of limitations there must be both residence outside......
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Connecticut Trust & Safe Deposit Co. v. Wead
...absent therefrom,’ instead of ‘or remains continuously absent therefrom.’ After this amendment it was held by this court in Hart v. Kip. 148 N. Y. 306, 42 N. E. 712, that, to effect a suspension of the statute, there must be both residence without the state and the party must be continuousl......
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Mack v. Mendels
...for the suspension of the running of the statute. By the amendment the Legislature required both conditions to concur. In Hart v. Kip, 148 N. Y. 306, 42 N. E. 712, this court had held that departure and continuous absence from the state for more than a year by a debtor who maintained a resi......
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Green v. The Sheraton, LLC
...An individual's citizenship, within the meaning of the diversity statute, is determined by his domicile”. Id. at 964. However, the class in Hart consisted of exotic dancers, “tend to change jobs and switch their employment more frequently than some other categories of workers . . . [N]ude e......