
    (75 Hun, 309.)
    HELMER v. MINOT.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Limitation op Actions—Absence pbom State.
    In order to avoid the effect of Code Civil Proc. § 401, providing that if, when a cause of action accrues against a person, he is without the state, the action may be commenced within the time limited therefor after his return, the burden is on him to show his presence in the state after the cause of action arose for a sufficient time to bar it.
    Appeal from circuit court, Monroe county.
    Action by Josiah H. Helmer against Bartlett Minot. From a judgment in favor of plaintiff after a trial before the court without a jury, defendant appeals.” Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    Delbert A, Adams, for appellant.
    T. S. Dean, for respondent.
   LEWIS, J.

The plaintiff, at the request of the defendant, and a surety upon the promissory note of the defendant, dated November 21, 1868, due in one year from date. The defendant failed to pay the note at maturity, and the plaintiff was compelled to, and- did, pay the amount of the note to the holder. This action was commenced on the 31st day of October, 1891, to recover the amount paid, with interest. The defense relied upon is the statute of limitations. The evidence tended to •show that the defendant was at the time of making the note, and up till the spring of 1869, a resident of the city of Lockport, and was there engaged in business; that he closed his business during the spring or summer of that year, and shipped Ms goods to the state of Illinois, and left the qity of Lockport, stating that he intended to remove to the state of Illinois. He thereafter corresponded with a resident of the city of Lockport, dating his letters from Bloomington, 111. Up to the time of leaving Lockport, he had been seen in that city from day to day. After his removal, he was not seen in Lockport, until about the year 1872, when he returned there with the dead body of Ms wife, for burial. He then stated that he was residing in Dakota, that he had taken up some government land there, and that he intended to return to Dakota in about one week. There was proof tending to show that he was seen in this state some time thereafter, but when did not appear. He returned again into this state in the year 1891 to attend his father’s funeral, at which time this action was commenced. He then stated that he had come from the state of Washington. The defendant’s brother testified that he was a resident of Clarkson, in this state, and that he did not know of the defendant residing in this state since he left it, in 1869. These facts having been established by the plaintiff, it made a prima facie case of absence of the defendant from the state, and put the burden of proof upon him to show his presence in the state after the indebtedness to the plaintiff accrued for a sufficient time to bar the claim; that is, for six years. Section 401 of the Code of Civil Procedure provides that “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 his return into the state.” Bank v. Seawell, 18 Ala. 619; Nixon v. Palmer, 10 Barb. 178; Mayer v. Friedman, 7 Hun, 218. The trial court found as facts, upon evidence sustaining the findings, that, before the maturity of the note, defendant, who prior thereto had been a resident of the city of Lockport, in this state, left said state, and went to the state of Illinois, where he took up his residence, and that ever since that time the defendant has continued to reside without the state, and has remained continuoúsly without the state, except upon two or three occasions, when he was temporarily here, as stated above, and held that the plaintiff was entitled to judgment against defendant for the amount due upon the note. We find no reason for disturbing the judgment. It should be affirmed. All concur.  