Opinion
May, 1897.
Paul Eugene Jones, for appellant.
James F. Higgins, for respondent.
The defense of the Statute of Limitations is made out upon the evidence and the judgment cannot be disturbed. The claim is over fifteen years old and, although, for periods aggregating the greater part of that time, the defendant resided in New Jersey, he proved seven years' residence in this state. This is exclusive of the time in which he lived in New Jersey, and came every day to business in New York, so that we need not consider any questions with regard to that period. Conceding, as appellant contends, that coming to this city every day from another state to business, did not constitute residence here, his period of unquestioned actual residence in New York, deducting his absences, filled the statutory time of six years from the time the debt accrued.
The chief point made by appellant is that the return of defendant to this state, after his residence out of it, was not open and notorious, so that the plaintiff could know of his return, or with due diligence could have ascertained it and served process upon him. Cole v. Jessup, 10 N.Y. 96; Ford v. Babcock, 2 Sandf. 518; Palmer v. Bennett, 83 Hun, 222. There is no proof, nor even suggestion, that the defendant's return to this state was clandestine, or that he kept himself concealed, or his whereabouts secret, while here. He was employed as a dentist's assistant, and did not have a sign out, nor put his name in the directory. It is not to be assumed that it is customary for dentists' assistants to display signs, and a debtor is not required to see that his name is in the city directory, on peril of being held to have concealed his return. If he had permission to put out a sign and declined it, and if his name were applied for to put in the directory and he refused it, ground for the charge might be made, but the proof does not go so far. It would seem that with a little exertion the plaintiff could have kept advised of defendant's whereabouts from time to time, since he knew where the defendant resided in New Jersey when he first left this state.
Judgment affirmed, with costs.
McADAM and BISCHOFF, JJ., concur.
Judgment affirmed, with costs.