Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-01-03
NV. Of the State Of New York, and that

therefore,, Oy reason OF NO pIOVt"Nsn0 ~
said soctinn g Of our statute no acsien
can be maintained against him in this
State. 1t is admitted BY resp0ndents
counsel that II the cau~e If action against
appellant arose in New York this action |
can,."t I've maintained, prov ided, said sec. |
ton % has not been repealed. Counsel
ia their brief say: I'VE ADM: that if re-
spondent's cause Of action against appel |
liant arose in New York and if sectiOn 80
of orr sratute has not been repealed, APP |
pellan,'s motion for a nnn-Suit should
have been granted" Appellants motion
for non. suit was granted Ms to Edward
Hyams, it appearing that the ranse of
action against him arose IN California
and by tue laws of th"t State an action
thereon had been barred there.
1t is cnnrend+d OH the part of respond
ent that the cause of action against both
of the defendants arose in the State Of
California, and that by reason of the nom
residence Iof William Hyams, and his
absence from that State. an action against
him WAS not barred there, the pla'e
where the cause of action arose, and that
therefore il is not barred here under said
section -. Appellants counsel cpntaHd
that the cause OF &C ion against him arose
in New York and an action thereon hav-
ing been barred III tina, STATE 10 acton.
| can be maintained against him III This
State az it is Dtr,,i bytS;,id section IS
A cause OF action IL defined Y uouyier
to be a right 10 bring au "ctiou. The
cause of action * = claim which may De
enforced. Buck in V. Ford, 8 Barb. 3g3;
Halsty Y. Rich, ( Hun. ~. Il !, the
right which party has to institute and
carry through an action. N ,@r V. Nan
| Colcute. Is Barb. go. The right to prose
cute an action with effect. D,tlgia, y.
Forrest, 4 Ing. 7o4; Is Z. c. l.. l39 The
| term cause of action is Synonymous it'll
right OF action. Am. Il Eng. Ency. OF
Law, H note.
The phase in said section So when
the cause Of action has arisen" is the
same in the sense OF the statute as if the
following expression had been used in
its stead-when a cause Of action has ac-
crued.
Did the right to bring an action ON said
note accrue in California against the ap-
pellant, nonresident OF that State and
absent therefrom? Could the claim of
the respondent have been enforced in
that State through the process issued by
any court of that slater Did the respond
ent have the right to institute and carry
through an action against the appellant
in California? Could he have prosecuted
: an actiOn against the appellant with ef-
feet in that State? We answer no to each
. of the above questions No court in Cal
itornia could have acquired jurisdiction
of the person OF the appellant by any
process it could have issued.
But the right to bring an action on said
note by respondent against the appellant
accrued in the State of New York, his
place of residence, the place where any
competent court Of New York could by
its process have acquired jurisdiction o.
his person, tho place where the respond
ent's claim against the appellant could
have been enforced, the place where tn,
respondent had the right to institute apt
!. carry through an action against the ap
!. pellant, and the place where the respond
ent could have prosecuted the actor
| oo0AssOs WIG @PPOAb0nS "ASA1 CAAOCSs
;. We are of opinion that when defaul
!, was made in the payment Of said not
, the cause of action thereon against tn
appellant arose or accrued In tho State O
. New York; that in such case as this tn
cause Of action accruee in any Stat
against the defendant where he may b
. found.
. We are Of opinion that section Of tn
statute Of 1867 which amends section
: of the statute of 1861 and incorporates
or makes 1t part Of the statute of 1856
is not repealed. But if it was repealed
would not avail the respondent. Sectio
. sos of the Civil Practice Act which wa
!; enacted in 1869 &C. l.. Sec. 36O3) provide!
when cause of action has arisen i
: another state, or in foreign countr,
!, and by the laws thereof an action thereo
: cannot be maintained against a person b
reason of the lapse Of time, an actio
thereon shall not be maintained again.
him in this state, except in favor of
= citizen thereof who has held the cause ,
! action from the time it accrued" TT
;, respondent is not citizen of this Stat
- The appellant offered to prove the Law
:, of New York to show that by said Law
an action on said promissory note cam,
be maintained there against the appe
ia liant by reason of the lapse Of time. TT
70 court refused the offer. but from the Al
% missions of respondent above given. "
~, take it that he admits that the laws
10 that State are as appellant claims them
be.
We do not deem it necessary to pa
30 upon the contention of the respect,
=. counsel with respect to the proper co
. structien of section Il of our statute
,t limitations, for if we are correct in o,
y, conclusion that the cause of action arc
o+ or accrued against the appellant IN Il
al State of New York, and we think we ri
~ then an action thereon was barred the
by reason Of the lapse of time and it
:, therefore. barred here.
- The judgment and order appealed fro