Barney v. Oelrichs

• Citation: 138 U.S. 529,11 S.Ct. 414,34 L.Ed. 1037
• Parties: BARNEY, Collector, v. OELRICHS et al
• Decision Date: 02 March 1891
• Court: United States Supreme Court

138 U.S. 529

11 S.Ct. 414

34 L.Ed. 1037

BARNEY, Collector, v. OELRICHS et al.

March 2, 1891.

Asst. Atty. Gen. Maury, for plaintiff in error.

S. F. Phillips and Frederic D. McKenney, for defendants in error.

FULLER, C. J.

This was an action brought against Hiram Barney to recover back money alleged to have been illegally exacted by him, when collector of the port of New York, as duty on certain charges and commissions, and as fees for services rendered in the custom-house in connection with merchandise imported, and was commenced in the superior court of New York city by service of summons, dated March 27, 1868, on the defendant, April 16, 1868, and subsequently removed into the circuit court of the United States for the southern district of New York. The declaration consisted of the common counts, and, in addition to the general issue, defendant pleaded that the supposed several causes of action did not, any of them, accrue at any time within six years next before the commencement of the suit; to which the plaintiffs replied that, after the several causes of action had accrued, 'defendant departed from and resided out of this state for several successive periods, amounting in the aggregate to twelve months, and this suit was brought within six years and twelve months after the said several causes of action, and each and every one thereof, accrued to these plaintiffs;' and defendant rejoined that, 'before the commencement of this suit, he, the said defendant, did not depart from and reside out of this state for several successive periods, amounting in the aggregate to twelve months, in manner and form,' etc.; concluding to the country. As this and many other similar causes involved, as respected duties alleged to have been illegally exacted upon charges and commissions, the examination of long accounts, of numerous invoices, entries, and other documents and papers, and the taking of the testimony of various witnesses touching the same, the several causes were sent by the court, without objection, to a referee, who took evidence and reported thereon, and whose report in this case was considered upon exceptions, and the conclusions reached by him made the basis of instructions to the jury upon the trial, which took place January 18, 1886. As to the fees, the jury were instructed to find for the plaintiffs in the amount of $289.12, being $113.60 principal, and $175.52 interest; and as to the duties overpaid, in the amount of $1,076.74, being $406.85 principal, and $669.89 interest; ad a verdict was returned accordingly, making, with some further interest and costs, a total of $1,586.14, for which sum judgment was rendered. The case having been brought to this court, counsel for plaintiff in error asks for a reversal upon the ground that the circuit court erred in its ruling upon the statute of limitations, and, as the argument was addressed to that point alone, our consideration of the record will take no wider scope.

The causes of action declared on accrued prior to the act of June 30, 1864, (13 St. 214,) prescribing the time within which actions against collectors might be brought, and while the act of February 26, 1845, (5 St. 727,) was in force, which preserved to parties paying duties under protest the right to maintain actions at law to test the validity of such duties. Whatever limitation existed was to be found in the state law, and in this instance in sections 91 and 100 of the Code of Procedure of April 11, 1849, c. 438, of the state of New York. By section 91 the limitation of six years was applied to 'an action upon a contract, obligation, or liability, express or implied, excepting those mentioned in section 90,' exceptions not material here. Section 100 was as follows: 'If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this 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.' Included in the amount claimed for overpaid duties, and in the verdict and judgment, were certain items for payments made more than six years prior to the commencement of this suit. To sustain the contention that these items were not barred, plaintiffs put in evidence a letter of the defendant stating that during the seven years from April, 1861, to April, 1868, his absences from the city of New York were all temporary, and, though frequent, were for short periods, varying from 1 day to perhaps 40 or 50 days; that there were probably only 2 or 3 as long as 40 days, and not more than 1 as long as 50 days; that they consisted mainly of brief visits to Washington during the first 4 years, and visits to Iowa and Wisconsin and the south during the following years; and that he estimated that they averaged 2 months a year. Some evidence of failure in attempting to serve process was also adduced. Mr. Barney testified on his own behalf that he had resided in the state of New York nearly 50, and in the city nearly 40, years, including from 1861 to 1870, inclusive, during which time he did not reside at any other place than Kings-bridge, now in the city, and never voted elsewhere than in the city except from 1842 to 1852, when he lived in Brooklyn; that he had always had an office in the city of New York; that his absences from the state were never with the intention of remaining away, except for the temporary purposes of pleasure or business; and that there was one absence in Iowa and Wisconsin on business which he thourht was over 50, but less than 90, days.

The court held, as matter of law, that all the absences referred to should be accumulated, and not taken as a part of the period of limitation, which being done, the statutory bar was not made out. The question is whether, under section 100, defendant was properly held to have departed from and resided out of the state of New York during these absences. If, in the administration of his office, he were called to Washington for 24 or 48 hours, or if he visited some seaside or mountain resort not in New York for a few days' recreation, or if business demanded his sttention temporarily in other states, did defendant reside out of the state of New York within the intent and meaning of the statute? We do not think he did, and that the words 'to reside out of the state' meant the taking p o f an actual abode or dwelling place elsewhere, and not a mere temporary sojourn for transient purposes. The inquiry is as to the meaning of the words as used. If 'residence' were always synonymous with 'domicile,' or even with 'inhabitancy,' there would seem to be no room for contention; but if the language here was intended to express something less than domicile or inhabitancy, then the proper definition must be arrived at in view of that intention and the subject-matter to which the words were applied, and we are of opinion that 'to reside out of the state' comprehended something more than alighting at a place in travel or in pursuit of temporary objects, and such we understand to be the result of decision by the courts of New York.

In Penfield v. Railroad Co., 134 U. S. 351, 10 Sup. Ct. Rep. 566, we had occasion to consider when a person might be properly held to be a resident of the state of New York, and entitled to bring an action which would have otherwise been barred by the laws of the defendant's...