
    Alice M. Costello, Appellant, v. Abner P. Downer, Respondent.
    
      Statute of Limitations—how affected by the residence out of the State of one who daily openly transacts business in this State.
    
    Where the maker of a promissory note, on the day when the note matures is, and for upwards of a year has been, a resident of another State, but during that time, and for eight years thereafter,' it has been his custom to attend his office in New York each day during business hours, and there openly to conduct his business, conceding that he must be considered to have been without the State of .New York at.the time the cause of action accrued, within the meaning of section 401 of the Code of Civil Procedure, yet he must be deemed to have returned to the State of New York within the meaning of that section.
    His absence not having been continuous for a year during that time, the payee cannot, in order to escape the bar of the six years’ Statute of Limitations, invoke the 2d clause of said section, providing that if, after the cause of action has accrued against the 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 an action.
    Appeal by the plaintiff, Alice M. Destello, from.a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Madison on the 4th day of March, 1891, upon the decision of the court rendered after a trial at the Schuyler. Special Term, sustaining the defendant’s demurrer to the plaintiff’s amended reply, with notice of an intention to bring up for review an order of the Supreme Court, made at the Schuyler Special Term .and entered in the office of the clerk of the county of Madison on the 4th day of March, 1897, sustaining said demurrer, and directing final judgment dismissing the plaintiff’s complaint.
    This action was brought to recover upon a promisory note made by the defendant on May 28, 1884, and payable to the plaintiff “ three years after date.” ' ■
    
      C. A. Hitchcock, for the appellant.
    
      Charles Kellogg, for the respondent.
   Parker, P. J.:

The facts averred in the reply in this case show that, on the day the note matured, the defendant was, and for upwards of a year had been, a resident of the State of New Jersey ; that during all that time, however, he had during business hours in each day attended at his office in the city of New York and there carried on his business. Such attendance was open and notorious, and seems to have been of such a character that the plaintiff, with reasonable diligence, would have had no difficulty in ascertaining that he could have been found and served with process there. And this condition existed for about eight years after such date, before this action was brought.

Conceding that under such facts we should consider the defendant as having been “without the State” at the time the cause of action accrued, I do not see how We can, under the decisions, escape the conclusion that he had more than six years before the commencement of this action returned to this State, within the meaning of the 1st clause of section 401 of the Code of Civil Procedure, in such a manner as to set the Statute of Limitations running.

It seems to be well settled that, under such a clause, a non-resident at the time the note matures does not have to move into and take up his residence in this State to set the statute running. An open and notorious coming into this State, so that the creditor, by the exercise of ordinary diligence, might cause process to be served upon him, is sufficient to set the statute running. (Randall v. Wilkins, 4 Den. 577; Palmer v. Bennett, 83 Hun, 220; Engel v. Fischer, 102 N. Y. 400, 404.)

The cases cited by the appellant’s counsel do not conflict with this conclusion. Burroughs v. Bloomer (5 Den. 532) was a case where the debtor departed from this State after the 'cause of action arose, and the decision, is based upon the. construction placed upon the 2d clause of : the statute as it then existed: Bassett v. Bassett (55 Barb; 518) and McCord v. Woodhull (27 How. Pr. 54) were both based upon the :shme authority and clause of the section. And in Bennett v. Cock (43 N. Y. 537) the decision proceeds upon the theory that the , defendant’s daily coming into the city to attend to his business set the statute running in 1ns favor, and that his daily departures and absences operated to stay it under the 2d clause of such section as it then stood. The case of Biker v. Curtis (17 Misc. Rep. 134) is based entirely upon the authority of this latter case.

The defendant in this case, therefore, having come into this State after the "maturity -of the note and set the statpte running-in his favor, it continued to run,-unless by some act of his within the.-provisions of the 2d clause of section 401-4- as.it existed at the time this action was-.commenced — he h'as stopped it running.

■ The 2d- blaiiSe-of- that section-then-provided-that “if, after a cause of action has accrued against the person, he', departs from-and resides without the Sta-te^ and remains continuously-absent therefrom- for-the space of one year or more,' * * <■* the-time of his absence * is not a part óf -the time limited,” etc;. It 'Will be noticed -that under this provision "the debtor must not only reside" out of the State-, after his departure, but must also remain continuously absent therefrom for the space of -one. year. Both horn-residence and continuous absence, for a, year must concur in order to stop the-running of the statute. (Hart v. Kip, 148 N. Y. 306.) In the case, before the debtor, after coming into the State and setting the statute running, the same -day departed therefrom, but he"-returned-the next day,' and soi departed one day and returned the next upon -each business day <for substantially eight years. If the clause of the section under consideration merely provided that liis departure and residence out of the State should operate to prevent the statute running while so absent', it woiild be easy to conclude'that the "defendant’s • absence while át his’ home "should not be -counted as any part of -the six years running -in' liis ■ favbl. Such' was the-, provision- of this clause when Burroughs v. Bloomer, Bassett v. Bassett and Bennett v. Book. (supra) were decided.

Construing the provision to mean-that successive absences-may be accumulated and -their aggregate deducted from the period of limitation, as was held in Cole v. Jessup (10 N. Y. 96), and such conclusion necessarily followed. But with the additional requirement which the section now contains, that he must also remain “ continuously absent therefrom for the space of one year,” those cases and others of like import cease to be authority. Although constantly a resident out of the State his daily return into it for the legitimate and only purpose of carrying on his business there rebuts the claim that he was “continuously absent.” Evidently that provision requires something more than a continued “ non-residence.” It must be continued “absence.” And, although it is not improbable that instances will arise where it will be difficult to determine whether the Legislature intended to include them within such provision or not, it seems too clear for discussion- that a non-resident who is daily present and carries on his business within this State is not continuously absent therefrom for the space of one year.

That the 2d clause -of this section is applicable to the case of a debtor who, "being a non-resident and absent when the cause of action accrues, subsequently returns to this State, sets the statute running and then departs again, is held in Cole v. Jessup (supra).

I am aware that, under this construction, the presence of the defendant in this State for the full period of six years has not been secured to this plaintiff, and that similar instances may frequently occur. But such condition seems to necessarily result from the comparatively recent requirement in the statute that the absence of the debtor must be continuous for the space of one year. However onerous upon -the plaintiff this construction may prove, we must assume that the Legislature has provided for all the exceptions which a sound public policy dictated and must administer the law as we find'it. (Engel v. Fischer, supra)

Our conclusion, therefore, is that the facts averred in the reply do not avoid the defense set up, and that at the time this action was commenced it was barred by the Statute of Limitations. The judgment of the Special Term was, therefore, correct and should be affirmed.

Judgrnent and order affirmed, with costs.

All concurred, except Herrick, J., dissenting.

Judgment affirmed, with costs.  