
    Charles Engel, respondent, v. J. H. Fischer, appellant.
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Statute oe limitation—Absence ebom state—Concealment—When’ STATUTE WILL OPERATE AND SEBVE.
    Where the debtor was continuously within the state for more than six years after the cause of action accrued, he cannot be deemed to have been without the. state, and thus the running of the statute defeated, even though he conceals his abode from his creditor, who is thus unable to-discover and serve him with process, and even if he changes his name for the purpose of eluding his creditors.
    2. Same—Code op Civil Pbocedube, § 401.
    Such a case is not covered by_ the exception of the Code of Civil Procedure, § 401, relating to deduction of time for absence from the state.
    Appeal from the general term superior court of New York, reversing judgment entered at trial term, upon dismissal of the complaint by a single judge without a jury.
    
      C. E. Rushmore, for appellant, J. H. Fischer.
    
      B. Lewis, for respondent, Charles Engel.
   Earl, J.

This action was commenced against the-defendant as acceptor of a bill of exchange payable three months after date, drawn on the first day of May, 1813, at Vienna, Austria, for 3,600 gulden, equivalent in our money to $1,512. The defense interposed is that the cause of action was barred, by the statute of limitations. The facts are these: The defendant resided in Austria, where he-accepted the bill, and soon thereafter he absconded, and in July came to the city of New York, and there he has ever since resided. On reaching New York, for the purpose of concealing himself from his creditors, he assumed the name-of Marcus L. Fischer, and thereafter bore that name, and. hid himself thereunder. The plaintiff discovered him in the city of New York in April, 1882, and there at his store-demanded of him the payment of the draft, which was refused, and then in the same month this action was commenced.

While the plaintiff concedes that more than six years; had elapsed from the time the cause of action accrued against the defendant, he claims the benefit of the exception contained in section 401 of the Code, which is as follows:

“If, when the cause of action accrues against a person, he is without the? state, the action may he commenced within the time limited therefor after L^return info the state. 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."

This section does not aid the plaintiff, because the defendant was not without the state when the cause of action accrued, and he never thereafter departed from the state. While the defendant bore an assumed name, he was physically, at all times, within this state, and there was no hiding or concealment of his person except as he assumed and bore the fictitious name. It passes my comprehension how, by any process of reasoning or metaphysics, such a, person, continually present in the state for nearly ten years, can be said never to have come here, and to have been continually absent from the state. It is quite probable that the defendant perpetrated a fraud upon the plaintiff by concealing his residence from him, and that the statute is resorted to by him to defeat a just claim; yet the statute must have its operation. Its plain language cannot be perverted to remedy the hardship of any particular case. It is-a benign statute, and the legislature has written it in all the exceptions which sound policy dictated to it. It may frequently operate to defeat just claims, and be used by dishonest debtors to escape the payment of honest debts. A cause-of action may be barred before it is known to the claimant. The debtor may purposely conceal it, and yet the bar of the statute must inexorably be applied. A debtor who has always resided within the state may abscond from his home, and conceal himself within the state from his creditors, and yet no one will claim that such debtors are to be regarded as-without the state, or that such concealment will defeat the running of the statute. The law gives a creditor six years’ continued presence of his debtor within the state after the cause of action has accrued, and that period has been deemed ample to enable the creditor to find his debtor, and to put the machinery of the law in force against him. It would lead to great inconvenience, and leave the bench and bar without any certain rule, if, in every case where a debtor has resided and continually been within this state for six years after a cause of action against him accrued, and the statute of limitations is interposed as a bar to an action to enforce the same, it could be a matter of inquiry and litigation, upon disputed evidence, whether the debtor, during any portion of the time, concealed himself fraudulently or otherwise, and whether the creditor used due dili.gence to find him.

There are some cases in which what is now the first clause of the section above quoted was under consideration, and it-became necessary for the courts to determine what was a .return or coming into the state so as to set the statute running, wherein it was decided that the return must be open and notorious, and under such circumstances that the creditor- could with reasonable diligence find his debtor and serve him with process. Little v. Blunt, 16 Pick., 359; Hill v. Bellows, 15 Vt., 727; Hysinger v. Baltzell, 3 Gill & J., 158; Didier v. Davison, 2 Barb. Ch., 477; Ford v. Babcock, 2 Sandf. 518; Cole v. Jessup, 10 N. Y., 96; Dorr v. Swartwout, 1 Blatchf. 179; 3 Pars. Cont. (6th ed.) 96; Angell. Lim. (2d ed.) 216. A debtor might return to the state clandestinely, for a few hours, in the night-time, or on Sunday or he might be in the state on his progress through it; and a return of such a character which might be concealed from .and unknown to the creditor, and which would afford him no opportunity by the use of reasonable diligence to serve his debtor with process, is held not to be a return to ■the state within the meaning of the statute. But it has never before this case, so far as I can discover, been decided that, where the debtor was continually in the state for more than six years after the cause of action accrued, he was deemed to have been without the state, and thus the running of the statute defeated because he concealed his abode, -and thus the creditor was unable to discover him and serve him with process.

The case of Sleght v. Kane (1 Johns. Cas. 16), is not an .authority for the plaintiff. There the defendant was held to be without the state while he was in a place which had been conquered and was held by the British troops, and which was neither de facto, nor, I am inclined to believe, ■de jure, a part of the state, nor subject to the jurisdiction of the state courts. In Poillon v. Lawrence (77 N. Y., 208), it was held that a discharge in bankruptcy was void as to a •creditor from whom notice of the bankruptcy proceedings was purposely and fraudulently omitted, by conducting the •same in a name assumed by the debtor, which was entirely •different from that under which the debt was contracted, .and that case has no bearing upon this.

We. are therefore constrained to hold that the order of the general term should be reversed, and the judgment of '.the trial term affirmed, with costs.

All concur.  