
    WILLIAM ULLNER v. FREDERICK BUTTERFIELD.
    
      Statute of limitations—distinctions in its operation on residents and on nonresidents—absences from the state, etc.
    
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    
      Decided June 2, 1883.
    Plaintiff’s exception to a verdict directed for defendant and ordered to be heard in the first instance at general term.
    The action was for injury to plaintiff’s personal property from defendant’s alleged negligence. The defense, among others, was the statute of limitations. The court below delivered the following opinion upon dismissing the complaint: “In its practical application, the statute of limitations applies to both residents and nonresidents, but its construction becomes very different when certain things are considered, viz.: Whether the defendant, at the time when the cause of action accrued, was a resident or a non-resident % A non-resident is never presumed to be here ; hence, he is always presumed to be absent until shown to be here ; and, therefore, the statute does not commence to run as to him until he comes within the state; and, under the operation of the statute, the plaintiff has six years from that time within which to commence his action. In the case of a non -resident making successive visits and. successive departures, the aggregate time that he spends here must be considered (counted). But in the case of a resident, the rule works the other way; he is always presumed to be here (within the state), unless shown to be absent; hence, as to him, the plaintiff must commence his action within six years, unless the defendant be absent from the state in a certain way ; if so absent, that time is not counted as a part of the six years, and operates as an extension of the six years of limitation.
    Now, in this case it appears, that although there were a number of absences on business, none of them amounted to a year; and none of them were, under such circumstances,, that it can be held, as matter of law, that the defendant acquired a residence abroad. The provisions of the Code extending the statute in actions of this nature, apply only when it is shown that during the running of the statute the defendant acquired a fixed residence outside of the state, or in case he does'not acquire such fixed residence, if the absence is continuous for at least a year. So that under the decisions as they now stand, the true interpretation of the Code is that this action should have been commenced within six years, it having been proved that the defendant was here when the cause of action accrued and was also here at the time when the plaintiff claims his action was commenced by placing the summons in the hands of the sheriff for service, although the proof shows that the actual service in this case was made beyond the time when the plaintiff should havé brought his action. The Code provides that an action may be deemed to be commenced so as to save the statute, provided the summons is delivered to the sheriff with the intent that it shall be actually served. That was done within the six years in this case; but the Code further- provides that the plaintiff shall take nothing by doing this, unless it is followed up by the actual personal service thereof upon the defendant within sixty days after the expiration of the time limited by the statute, or by the first publication of the summons as against the said defendant within that time, pursuant to an order for service upon him in that manner. Now, in this case, although the summons was delivered to the sheriff within the six years, yet as it was not followed up by either the personal service thereof or by the first publication thereof within the time limited by law, the plaintiff did not commence his action within the meaning of the Code, within the time limited by law ; hence the defendant is entitled to a verdict.”
    The court at General Term said : “ Judge Freedman, in his opinion below, made it clear that the action was barred by the Statute of Limitations. The question was whether under §401, Cod. Civ. Proc., any absence of the defendant as shown by the testimony required that the time of the absence should be added to the time otherwise limited by the statute. There were several absences. None of them was for more than six months. Added together they would have extended the statutory term so, that the action would not be barred. The plaintiff was entitled to no time, by the operation of the first sentence of the section, viz. ; ‘ If when the cause of action accrues against a person, he is without the state, the action may be commenced within the time limited therefor, after his1 return into the state.’ The proof was that when the action accrued the defendant was within the state, was also a resident of it. The next sentence is, if after a cause of action accruing against a person, he departs from and resides without the state or remains continuously absent there from for the space of one year or more, the time of his absence is not a part of the limited time. The proof was from circumstances, that defendant was a resident of this state when the cause of action accrued, and it was direct that his absences were not for residence out of the state, and that he was not absent, at any time, continuously for the space of a year or more. The facts were so full, that they raised no question, that calls for discussion.”
    
      Smith, Allen & Smith, for plaintiff.
    
      Boardman & Boardman, for defendant.
   Opinion Per Curiam.

Exceptions overruled and judgment for defendant entered on the verdict with costs.  