In section 90 of the New York Code of Civil Procedure, it is
"where a cause of action . . . accrues against a person who is
not then a resident of the state, an action cannot be brought
thereon in a court of the state, against him or his personal
representative after the expiration of the time limited by the laws
of his residence for bringing a like action, except by a resident
of the state, and in one of the following cases: . . . 2. Where,
before the expiration of the time so limited, the person in whose
favor it originally accrued was or became a resident of the state,
following the decisions of the courts of the New
York in parallel cases, that this statute contemplates that the
plaintiff shall be an actual resident in the state, and that he
does not become such by sending his family to the New York from
another state, in which he and they were residing, with the intent
that they should reside there, but remaining himself in the other
The case is stated in the opinion.
Page 134 U. S. 352
This action was brought in March, 1884, in the Supreme Court of
New York, Kings County, by the plaintiff in error against the
Chesapeake, Ohio and Southwestern Railroad
Page 134 U. S. 353
Company, a corporation created under the laws of Kentucky and
Tennessee. Its object was to recover damages alleged to have been
sustained by the plaintiff on the 30th of November 1882, in the
State of Tennessee, in consequence of the careless, negligent, and
wrongful conduct of the defendant and its servants while he was a
passenger upon one of its trains. Upon the petition of the company,
the action was removed into the Circuit Court of the United States
for the Eastern District of New York, where, after the evidence was
concluded, the jury, under the direction of the court, returned a
verdict for the defendant. This direction was given because, in the
opinion of that court, the plaintiff's cause of action was barred
by the statutes of limitation of New York.
The statutes here referred to are in these words:
"The following actions must be commenced within the following
periods after the cause of action has accrued: . . . Within three
years: . . . An action to recover damages for a personal injury
resulting from negligence."
N.Y. Code of Civil Procedure §§ 380, 383.
"Where a cause of action which does not involve the title to, or
possession of, real property within the state accrues against a
person who is not then a resident of the state, an action cannot be
brought thereon in a court of the state against him or his personal
representative after the expiration of the time limited by the laws
of his residence for bringing a like action, except by a resident
of the state, and in one of the following cases:"
"1. Where the cause of action originally accrued in favor of a
resident of the state."
"2. Where, before the expiration of the time so limited, the
person in whose favor it originally accrued was or became a
resident of the state, or the cause of action was assigned to, and
thereafter continuously owned by, a resident of the state."
A motion for new trial having been overruled, a judgment was
rendered for the company. That judgment is here for review, the
only error assigned being the court's instruction to find for the
Page 134 U. S. 354
It was agreed that at the trial the plaintiff gave testimony
tending to show the following facts:
He lived in Harlem, New York, when a boy of fourteen years of
age, married in Brooklyn, removed from that city to Michigan, from
the latter state to Illinois, and from Illinois to St. Louis,
Missouri, where he had resided for about one year prior to the
accident. At the time of the accident, he was a traveling salesman
for an agent of the Michigan Salt Association located in St. Louis,
and when the trial took place was engaged in that capacity. When
injured, he resided in St. Louis, with his wife and children. In
August, 1883, he
"sent his wife and children to Brooklyn, New York, where they
took up their residence and commenced to keep house and where they
have resided ever since August, 1883, and do now reside."
The plaintiff himself did not go to Brooklyn with his family in
August, 1883, nor did he join them there until December 31, 1883,
or January 1, 1884.
"He remained with his family in Brooklyn for about three months,
when he again went to St. Louis, and from there went traveling for
said agency as said salesman."
He "again joined his wife and children the next December, 1884,
and remained with them some three months, when he again went out on
the road." He joined his family in October, 1885, and was with them
at the time of the trial. He lived with them when at home, and
always lived with his wife since their marriage, except when absent
on business. The attorney for the defendant addressed the plaintiff
at his place of business in St. Louis up to December 28, 1883, on
which day the latter notified him by letter of his change of
address to Brooklyn, for which place he was in the act of starting
to join his family.
Upon the issue as to the residence of her husband, Mrs.
Penfield's evidence was that they had lived together constantly for
about twenty-two years, and she was always with him except when he
was traveling. Having stated that at the time of the accident, and
during the sickness of her husband resulting from the injuries
received by him, they resided at St. Louis, her examination
"Question. How long did you continue to live there yourself
after this sickness? Answer."
"Until the next August."
"Q. What year was that?"
Page 134 U. S. 355
August, 1883, what did you do?"
"A. Came here to Brooklyn, hired a house, and went to
housekeeping; moved all my things I wished to retain, and have
lived here ever since with my children."
"Q. What about your furniture?"
"A. Part I sold in St. Louis, and part I brought here."
"Q. And have you been residing here ever since?"
"A. Yes, sir."
"Q. Your husband's place of abode is here with you in your
"A. Yes, sir."
"Q. At the time you removed from St. Louis to Brooklyn, will you
state, if you know, the reason why your husband did not come on
with you at that time."
This question was objected to as immaterial and irrelevant, and
was not answered.
As the railroad company is a corporation of Tennessee, where the
injury occurred, and as the plaintiff was not a resident of New
York when the cause of action originally accrued to him, the suit
was barred by section 390 unless he became a resident of the latter
state before the expiration of the period limited by the laws of
Tennessee for the commencement of actions like this -- that is,
before the expiration of one year from November 30, 1882. The
contention of the plaintiff is that although he was not in the
State of New York for some years prior to December 1883, he became,
within the meaning of the statute, a resident of that state when,
in August, 1883, he sent his family to the City of Brooklyn. We are
not aware of any determination of this precise question by the
highest court of New York, but there are decisions of that court
construing statutes, other than statutes of limitation, which
contain the words "resident" and "residence." Those decisions may
throw some light upon the present case.
The earliest of those cases to which our attention has been
called is In re Thompson,
1 Wend. 43. It arose under a
statute, 1 Rev.Laws N.Y. (1813) 157, the twenty-third section of
"That the estate, real and personal, of every debtor who resides
out of this state and is indebted within it shall be liable to be
attached and sold for the payment of his debts in like manner in
all respects, as nearly as may be, as the estates of debtors
residing within this state."
Chief Justice Savage, delivering the opinion of the court, said
that the object of the statute was to authorize creditors to
Page 134 U. S. 356
for their debts when their debtors were abroad, and, whether
their absence from the state was permanent or temporary, whether
voluntary or involuntary, the reason for giving this remedy to the
creditor was the same. He said the question was
"where was his actual residence, not his domicile. . . . The act
is intended to give a remedy to creditors whose debtors cannot be
served with process. If the debtor absconds or secretes himself,
then an attachment issues. If he notoriously resides abroad, then
the attachment issues. But if he goes openly to another state or
country, and remains there doing business, but intending to return
when his convenience will permit, he is not, as his counsel
contends, an absent debtor, and his property cannot be touched. He
may become a bankrupt abroad, as has Alexander Thompson; his
property may be taken by his partners, and used by them, or
transferred to his foreign creditors, as is attempted in this case,
and the creditor here may stand by and acknowledge and regret the
insufficiency of our laws, but the property cannot be touched.
Surely the legislature never intended such a state of things. . . .
The reason why this remedy is given against the property of debtors
resident abroad is equally applicable whether the debtor is absent
permanently or temporarily. No length of residence, without the
intention of remaining, constitutes domicile. A debtor, therefore,
by residing abroad without declaring an intention to remain, might
prevent his creditors from ever collecting their debts. In my
judgment, the present case comes not only within the spirit of the
act, but also within its terms."
In Frost v. Brisbin,
19 Wend. 11, the court was
required to determine the meaning of the word "resident," in the
act of 1831, Laws 1831, p. 396, providing that no person should be
arrested on civil process in suits brought upon contracts, express
or implied, except in cases where the defendant "shall not have
been a resident of this state for at least one month previous to
the commencement of a suit against him."
In that case, it appeared that Brisbin, a citizen and resident
of New York, purchased a stock of goods, took them to Milwaukee,
and established himself in business in the latter city,
Page 134 U. S. 357
leaving his wife and child to board at his former residence in
New York. There was evidence tending to show that he went to
Milwaukee with intent to make it his permanent residence. But there
was also evidence tending to show that he had no fixed purpose,
when he went to that city, of making it his permanent abode unless
he was successful in business, and that when arrested, he had the
purpose -- not having been thus successful -- to close up his
business and return to his former residence, though without any
certain plans as to his future course.
The court, speaking by Chief Justice Nelson, said that if the
case turned upon the defendant's formed intention and purpose of
mind, and not upon the fact of actual residence, the law was for
him. But, upon a review of former decisions, construing statutes
regulating the rights and remedies of creditor and debtor, he
"The cases cited above establish that the transient visit of a
person for a time at a place does not make him a resident while
there; that something more is necessary to entitle him to that
character. There must be a settled, fixed abode -- an intention to
remain permanently at least for a time, for business or other
purposes -- to constitute a 'residence,' within the legal meaning
of that term. . . . One of these cases expressly, and all of them
virtually, decide that actual residence, without regard to the
domicile of the defendant, was within the contemplation of the
statutes. Whether, therefore, the defendant had so established
himself at Milwaukee as to work a change of his domicile or not is
immaterial, for if we concede he has not, he may still be a
resident there. The domicile of the citizen may be in one state or
territory and his actual residence in another."
After observing that, upon the facts, it must be assumed that
the defendant commenced an actual and permanent residence in
Milwaukee in the spring of 1836, but that since that date he had
resolved to close his business there as soon as it could be
conveniently done and return to his former residence, the court
"Has this change of intention worked a change of residence? For
this is the most that can be pretended. If our exposition of the
meaning of the term in the statute is correct, it clearly
Page 134 U. S. 358
did not. His actual residence is still at Milwaukee. He is still
carrying on his business there, and may continue it for such time
as he pleases. Change of mind may lead to change of residence, but
cannot with any propriety be deemed such of itself."
In Haggart v. Morgan,
5 N.Y. 422, 428, which was the
case of an attachment against the defendant as a nonresident
debtor, it was held that although the defendant was domiciled in
New York, he was, by reason of a continuous, though temporary,
absence in New Orleans for about three years, to be deemed a
nonresident within the meaning of the statute regulating
In Weitkamp v Loehr.
53 N.Y.Superior Ct. 82, the court
"'Residence,' in attachment laws, generally implies an
established abode, fixed permanently for a time, for business or
other purposes, although there may be an intent existing all the
while to return to the true domicile."
These cases show that, within the meaning of the statutes
regulating attachments against the property of debtors as well as
those regulating arrests on civil process for debts, it was the
actual residence of the defendant, and not his domicile, that
determined the rights of the parties.
A like construction appears to have been given or assumed by the
courts of New York in regard to similar words in that clause of its
statute of limitations which provides that if, after the cause of
action shall have accrued, the defendant shall "depart from and
reside out of the state, the time of his absence" shall not be
included in the period of limitation. The supreme court of the
state, discussing that provision, said:
"The expressions 'and reside out of the state' and 'the time of
his absence' have the same meaning. They are correlative
expressions. So that, while the defendant in this case resided out
of, he was absent from, the state, and accordingly, until he again
became a resident of the state, the suspension of the operation of
the statute continued."
Burroughs v Bloomer,
5 Denio 532, 535. It was held in
that case, as well as in two later and well considered opinions,
the one of the Superior Court of the City of New York, delivered by
Page 134 U. S. 359
Justice Duer, and the other of the Court of Appeals, delivered
by Judge Selden, that where a defendant, after the cause of action
accrued against him, departed from and resided out of the state
several times, returning to the state in the intervening periods,
all the times of absence or nonresidence were to be added together
and deducted from the term of limitation. Ford v. Babcock,
2 Sandf. 518, 527, 531; Cole v. Jessup,
10 N.Y. 96, 104,
107. In each of those three cases, it was not alleged or contended,
and could not be inferred from any language in the pleadings or in
the opinion, that the defendant changed his domicile upon each
departure and return. To the same effect is Satterthwaite v.
24 F. 543. And in a very recent case, the Court
of Appeals said: "The law gives a creditor six years' continued
presence of his debtor within the state after the cause of action
has accrued." Engel v. Fischer,
102 N.Y. 400, 404.
To give a different meaning to the word "residence," or
"resident," or "reside," in that clause of the New York statute of
limitations which relates to plaintiffs from that which the courts
of the state have given it in that clause of the same statute which
relates to defendants, as well as in various statutes of the state
on other subjects, would produce much confusion.
Assuming, without deciding, that the testimony introduced for
the plaintiff in the present case would warrant the impression that
he had obtained a domicile in the State of New York by virtue of
his wife and family, with his consent, having made their home in
that state, there is nothing in the evidence which had the
slightest tendency to show that his own actual residence was in the
State of New York for many years prior to his going there from St.
Louis in December, 1883.
To illustrate by referring to other statutes, let us suppose
that the plaintiff, while engaged in business in St. Louis, had
brought this action in the supreme court of New York immediately
after his family took up their residence in Brooklyn. Could he not
have been compelled to give security for costs, under section 3268
of the Code of Civil Procedure, which declares that
"the defendant, in an action brought in
Page 134 U. S. 360
a court of record, may require security for costs to be given .
. . where the plaintiff was, when the action was commenced, either
a person residing within the state."
Or if the defendant in this action had, within the same period,
brought in one of the courts of New York a suit against the present
plaintiff upon a cause of action for an "injury to personal
property in consequence of negligence," it could not be doubted, in
view of the decisions heretofore cited, that an attachment could
have been sued out and sustained under sections 635 and 636 of the
Code, which provide that a warrant of attachment against the
property of one or more defendants in such an action may be granted
upon the application of the plaintiff where it appears by affidavit
"that the defendant is . . . not a resident of the state." Could
Penfield, in the last case supposed, have been deemed a nonresident
of New York when sued for "an injury to personal property in
consequence of negligence," and under the same facts be regarded as
a resident of New York if he sued the same party "for a personal
injury resulting from negligence?" Could he be deemed a resident of
the state, for the purpose of bringing this action, immediately
after his family reached Brooklyn, and a nonresident if the
railroad company had at the same time sued him in New York and
taken out an attachment against his property? The answer to these
questions suggests that in view of the course of decisions in New
York, the plaintiff, by retaining his residence for purposes of
business in St. Louis, did not become a resident of New York within
the meaning of section 390 until he changed his actual residence to
that state. If he had, before the expiration of the period limited
by the law of Tennessee, quitted his residence in Missouri and
joined his family in New York for the purpose of making the latter
state his residence in fact, he would have been entitled to bring
his action within the period fixed by the laws of New York for the
commencement of actions like this by one who is a resident of that
state when the cause of action accrues.
As, under the evidence, the jury could not, by any reasonable
inference from the proof, have found that the plaintiff became
Page 134 U. S. 361
himself a resident of New York within a year after the cause of
action accrued, the instruction to find for the defendant was