On appeal from the Supreme Court.
For the plaintiff-appellant, Kristeller & Zucker (Saul J. Zucker, of counsel).
For the defendant-respondent, Bilder, Bilder & Kaufman (Walter J. Bilder, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The question presented by this appeal calls for construction of R.S. 2:24-7 (a section of our statute of limitations) under which, in the computation of time from accrual of an action until it is barred by the passing of time, allowance is made in appropriate instances for such periods as a debtor shall be absent from the state. The statute reads as follows:
"2:24-7. If any person against whom there is or may be a cause of action specified in sections 2:24-1, 2:24-2,
2:24-3, 2:24-5, 2:24-6, 2:24-16 or 2:24-17 of this title is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, the time or times during which such person is not residing within this state shall not be computed as a part of the periods of time within which such actions are required to be commenced by said sections; and the person entitled to any such action may commence the same after the accrual of the cause therefor, within the periods of time limited therefor by said sections, exclusive of such time or times of nonresidence."
These are the facts of the case: The plaintiff, Dora Shapiro, a resident of New York, was the owner of Harris Friedman's obligation. It may be called a promissory note since it was an unconditional written promise to pay a certain sum -- $16,394.18 with 6% interest to Mrs. Shapiro three years from its date, which was February 1st, 1932. On its accrual the obligation was not met. Plaintiff, who continuously resided in New York and never became a resident of New Jersey, caused a summons and complaint to be delivered to the sheriff of Monmouth County on January 30th, 1941, which was one day prior to the expiry of the six-year period after the accrual date, February 1st, 1935. The process remained with the sheriff -- whether on plaintiff's instructions or not does not appear -- until June 5th, 1941, when the summons and complaint was served on the defendant personally in Monmouth County. It seems that the defendant's wife owned a summer home in Long Branch, New Jersey, and each year from May or June until October this place had been used as a summer residence by the defendant's wife, mother-in-law, children and grandchildren. The defendant himself went there during the summer months on week-ends, as a rule, and occasionally oftener. When process was served on him in June, 1941, he had not been at the summer residence since the fall season of 1940. The house had been closed in the interim. Each year telephone service for the summer months was made available for the family. The listing in the telephone directory was in the name of the defendant personally. The plaintiff considered that her suit, started
by serving the defendant in June, 1941, about four months after the six-year period, which began to run on February 1st, 1935, had expired, was nonetheless timely because of the saving features of the statute, supra. The learned trial judge, conceiving that the statute was inapplicable in these circumstances, ordered a judgment for the defendant and the plaintiff appeals. The main contention of the appellant is that the defendant was a resident of this state during the summer months of each year since 1935 or that he was resident here for a sufficient number of months which, if credited against the limitation of the statute, saves the action. In our opinion, this construction of the statute, supra, is erroneous.
In this case it is clear that the obligation originated and the cause of action thereon accrued outside the state. The creditor, i.e., plaintiff, was and always has been a non-resident. The debtor, under the proofs, had his domicile in the City of New York during all this period. Does the statute, supra, stop the running of the time fixed for the bringing of suit in the case of a defendant who is not domiciled here (and never was) but whose family occupies a summer home in this state which the defendant regularly visits? We do not think so. As a matter of fact, our construction of the statute, supra, has been averse from the contention of the plaintiff for more than a hundred years. Rather does the statute contain the plain implication that the party to be charged, if the statute may be invoked, was living in this state when the obligation was incurred and moved out before its accrual, or that he moved away after its accrual but before the statute of limitations had run its course. This construction coincides with the language of the statute as a whole and is in accord with our cited cases. This statute of limitation contains no saving clause anywhere in favor of absent, non-resident or foreign creditors. Beardsley v. Southmayd, 15 N.J.L. 171 (decided in 1835, St. of 1820, Rev. Laws 670).
Adverting to the statute, supra, the provision that "If any person against whom there is or may be a cause of action * * * is not a resident of this state when such cause of action accrues, ...