#### Rudolph Cruger, Appellant, *v.*Lew Dockstader, Respondent.

(City Court of New York, General Term,

March, 1900.)

Statute o£ Limitations — Absence of defendant from the State of New York a question of fact.

Where the proof in an action for services is that the defendant was a traveling minstrel, that he had not voted in the State of New York since 1887, that he had no fixed abode in the State and that he had stated in 1896 to the plaintiff that he had not been in New York in four or five years, it is erroneous for the court to direct a verdict for the defendant upon the ground that the claim has been barred by the lapse of six years, as the plaintiff should have been permitted' to *go*to the jury on the question of the defendant’s residence or abode and of his alleged absence and presence within the State during the running of the Statute of Limitations.

Appeal by the plaintiff from a judgment of the City Court of' the city of Eew York, entered upon a verdict directed by the court in favor of the defendant, after a trial at the Trial Term.

Abraham Levy, for appellant.

Victor J. Dowling, for respondent.

OoMLAir, J.

This is an appeal from a judgment entered upon a verdict directed by the court.

The action was brought to recover a certain sum as compensation for services, and the principal defense relied upon by the defendant was the Statute of Limitations. It was contended that the action was not brought within six years from the time the cause of action is alleged to have accrued. At the close of the plaintiff’s case, the defendant asked for the direction of a verdict, on the ground that it appeared from the pleadings that more than six years have elapsed since the time of the accruing of the cause of action, and the court said, *“*I think the burden is on'the plaintiff to show that defendant has not been within the State.” Under this ruling it became necessary to recall the plaintiff, who testified to the absence of the defendant from the State for a period far exceeding one year, in fact, *25the defendant is alleged to have stated to the plaintiff and his-wife, in 1895, that he, the defendant, had not been in New York for four or five years, and this is not contradicted, other than by statements that he had passed a week or so of each year in New York; he had not registered or voted in the State since 1887, and had no fixed habitation or abode therein. His business was that of a travelling minstrel, and he was nearly all the time upon the-road. It is not enough that service could have, with diligence,, been made upon him within the six years, and it has been held that the successive absences from a State can be accumulated, and the-aggregate deducted from the period of limitation. Cole v. Jessup, 10 N. Y. 107. We are of the opinion, upon the whole case, that the plaintiff should have been permitted to go to the jury upon the question of the defendant’s residence or abode, and of his alleged absence and presence within the State during the running of the statute, and that the refusal and direction of a verdict was. error, which calls for a reversal of the judgment.

Fitzsimons, Ch. J., concurs.

Judgment reversed and new trial ordered, with costs to appellant, to abide event.