
    First Nat. Bank of Lockport v. Bissell.
    
      (Circuit Court, Niagara County.
    
    June 8, 1889.)
    
      t. Limitation or Actions—Amendment op Statute—Retboactive Laws.
    Code Civil Proc. N. Y. § 401, provided that “if after a cause of action has accrued against a person he departs from and resides without the state, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time limited for the commencement of the action. ” After an action had been commenced, but before trial, the section was amended by the act of June 4,1888, so as to require the debtor not only to be a non-resident of the state, hut to he absent therefrom. Held, that as the effect of the application of the amendatory act to the pending action would be to deprive the plaintiff of a cause of action which was valid when the action was commenced, the amended statute- could not operate retroactively without violating the constitution of the United States, prohibiting the states from passing laws impairing the obligations of contracts.
    3. Same—Absence fkom State.
    A debtor who removes from the state before a cause of action against him has been barred by limitation, and who continues to be a non-resident, cannot during that time, by temporary returns to the state, put the suspended statute again in operation.
    Action by First National Bank of Lockport against Rush W. Bissell, on three promissory notes. Plea of statute of limitations by defendant.
    f. F. <£• G. W. Bowen, for plaintiff. Harmon & Chapman, for defendant.
   Lewis, J.

This is an action against the defendant, as indorser, on three promissory notes. The defense is the statute of limitations. The notes matured December 13, 1877, November 16, 1878, January 22, 1879, respectively. At the time they matured, the defendant was a resident of the state ■of New York. Thereafter, and in the month of October, 1882, he removed to the state of New Jersey, and has ever since been a resident of that state. This action was commenced in January, 1888. When the defendant thus removed from this state, there was unexpired of the six-years limitation on the first note, one year and two months; on the second, two years and one month; and on the third, two years and three months. All the time the defendant has resided in the stake of New Jersey, his place of business has been in the city of New York; having an office there, with his name upon the office door, and he lias spent the business part of each secular day in that city.

At the time of the commencement of this action, section 401 of the Code of ‘Civil Procedure provided: “If, after a cause of action has accrued against a person, he departs from and resides without the state, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time limited for the commencement of the actiqn. ” Prior to the trial, and on the 4th day of J une, 1888, section 401 was amended so as to read: “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 the space of one year or more, * * * the time of his absence * * * is not a part of the time limited for the commencement of the action.” So that by the amended section, to suspend the running of the statute of limitations, the debtor must not only be a non-resident of the state, but be absent therefrom. The defendant claims, that this section, as amended, applies to this case, notwithstanding it was passed after the action was commenced,— claiming that the whole matter of limitation is one of process and remedy, and not of right or obligation, and is therefore entirely without the scope of the constitutional prohibition respecting the obligations of contracts. If he is right in his contention, and this amended section is held to apply to this case, the statute has probably run against these notes, and the plaintiff is not entitled to recover; and this is the first question to be considered. The purpose of this section is to regulate the time within which an action may be commenced after the claim matures; it has no reference to the time when it may be tried, but within what time it may be commenced. It should, I think, be limited in its operation to the time of the commencement of the action; and if, when an action is commenced, a cause of action exists, the change in the act should not be construed to be retroactive, unless its language plainly and unmistakably imports that purpose. Goillotel v. City of New York, 87 N. Y. 441; Richardson v. Cook, 37 Vt. 599; Hedger v. Rennaker, 3 Metc. (Ky.) 255; Van Rensselaer v. Livingston, 12 Wend. 490.

While the legislature may change and modify remedies and forms of proceedings, and even the tribunal itself, they cannot destroy or abrogate all remedies whatever; for, by so doing, they impair and destroy contracts. Before the amended section took effect, the plaintiff had a valid cause of action against the defendant,1 and had the plaintiff succeeded in getting its cause to trial before the 4th of June, 1888, the time when the amended section took effect, it would then have been entitled to judgment. If the defendant’s contention be correct, the act of June 4th destroyed this claim, and that without giving the plaintiff any opportunity or means of avoiding that result. If the terms of this section, as amended, plainly import that it was to be retrospective in its operations, and apply to actions then pending, thereby defeating a contract previously valid, it would conflict with the prohibition of the United States constitution, which forbids the states passing laws impairing the obligation of contracts.

In an elaborate article written by Judge Cooley, entitled “Effect of a Change in the Law, ” published in 3 South. Law Rev. (N. S.) 44, the author says that “statutes should be construed so as to apply prospectively, unless by their terms a retrospective effect is clearly intended. * * * If the new defense would defeat a contract previously valid, or take away any right assured to the party, then the defense could not be allowed, for it would come within the prohibition of that clause of the constitution of the United States which forbids the states passing laws which impair the obligation of contracts. Remedies are always under legislative control, and may be changed at will; provided the change does not go to the extent of depriving the one party of substantial redress, or of fastening upon the other some new obligation.” In general, when the law is altered pending an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. End. Interp. St. § 282.

The defendant’s counsel insists that even if it be held that the amended section does not apply to this case, but that the case is to be disposed of under the section as it existed before it was amended, then there should be added to the time tha0 had elapsed between the maturity of the notes and the time the defendant removed from the state, the time he actually spent in the state of New York while residing in New Jersey; and if that be done, it will appear that the statute of limitations had run against the notes at the time the action wTas commenced. This claim of the defense has been the subject of much discussion, and the decisions thereon have not been entirely harmonious. The construction given to this section by Justice Ingraham, in Bassett v. Bassett, 55 Barb. 518, meets with my approval. The learned justice held that a creditor is not obliged to follow his debtor to another state, nor is he called upon to watch him to ascertain whether he comes into the state for a temporary purpose, so long as his residence is elsewhere. It may also be said that it was intended to give the creditor control as well over the person as the property of the debtor, by requiring a residence in the state to give effect to the limitation. This would not be the case if temporary return from time to time could overcome the residence abroad. The ease of Bassett v. Bassett was affirmed in the court of appeals, though not reported. When the plaintiff learned that his debtor had removed from the jurisdiction of the courts of this state, he was justified in waiting for his return. He was not obliged to visit the place of his residence in another state for the purpose of ascertaining whether he occasionally came to the state of Hew York, and, if so, when and where he might be found. Heither was he obliged to institute inquiries in the towns and cities of this state to ascertain if he could be found therein. McCord v. Woodhull, 27 How. Pr. 54.

My conclusion is that the defendant has failed to establish a defense, and that the plaintiff is entitled to a judgment for the amount claimed in its complaint.  