Bennett v. . Cook

43 N.Y. 537, 1871 N.Y. LEXIS 28

• Court: New York Court of Appeals
• Decided: January 31, 1871
• Status: Published

Opinion

By the Court—Peckham, J.

Upon the facts in this case, there is no theory in the law, which can maintain this plea.

At the time the draft in suit was protested in Hew York city, for non-payment, the defendant was a non-resident of this State. He returned to the city the next day thereafter, and remained there from about eight in the morning until six in the evening, and then returned to his-residence in Jersey City, and thus he continued to return to the city of Mew York for about the same length of time, each day except Sundays, and except a very few days when absent from sickness, or unavoidably detained, until this suit was commenced, being for about seven years and over. He went to Mew York City, openly and publicly; had an office there with his name thereon, and had no other place of business. During all that time, however, he resided with his family in Jersey City.

The counsel for the defendant insists that the time which the defendant was actually in the city of Mew York, should be allowed as so much time running under the statute.

If that should be allowed it makes no defence. He was not only a resident of Mew Jersey, but he was actually in that State more than half of the seven years. He was in Mew York at no time more than ten of the twenty-four hours of each day. The authorities have been fully referred to, and ably discussed. But there can be no pretence for claiming the allowance of more than ten of the twenty-four horns each day for the running of the statute, if he can be allowed any time at all, when a non-resident of the State, and as that makes no defence, there is no occasion to decide anything more.

Judgment affirmed with costs.