18 N.Y. 567, Denny v. Smith & Hull

• Citation: 18 N.Y. 567
• Party Name: DENNY v. SMITH & HULL
• Case Date: March 01, 1859
• Court: New York Court of Appeals

Page 567

18 N.Y. 567

DENNY

v.

SMITH & HULL

New York Court of Appeal

March 1, 1859

Page 568

COUNSEL

James C. Carter, for the appellant.

John E. Develin, for the respondent.

ALLEN, J.

It stands admitted by the pleadings in this action, that while the defendant Hull was always a resident of the State, the defendant Smith, after the making of the joint note, departed from and resided out of the State for so long a period that his liability still survives.

The court on the trial denied the motion for nonsuit, on the ground that it was no defence for the defendant Smith, in answer to an allegation that he had resided out of the State so long that his liability on the note was not barred by the statute of limitations, to allege and prove that his co-defendant had remained within the State.

By the provisions of the Revised Statutes, which are to govern this case (2 R. S., 297, § 27), an exception is made in relation to the case of absent or non-resident debtors, as follows:

"If at the time when any cause of action, specified in this article, shall accrue against any person, he shall be out of the State. "And if, "after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. " It is insisted that the word "person, "

Page 569

as here used, shall be deemed to include "persons, " so that the statute should read, "person or persons" (2 R. S., 778, § 11), and that, therefore, in the case of joint debtors, both must reside out of the State the length of time required to avoid the statute. It is true that, in the case of Brown v. Delafield (1 Denio, 445), the Supreme Court so held, and upon the ground that, as one of the defendants continued to reside within the State, both might have been sued at any time under the act relating to proceedings against joint debtors, and the plaintiff would thus have had judgment against both. That, on the return of the absent defendant, an action of debt might have been brought against him and his co-defendant, on the judgment; and if he should plead the statute, a replication would be good, that he had been out of the State. The learned judge who delivered the opinion of the court in that case cites Mervin v. Kumbell (23 Wend., 295) in support of the...