Opinion
December 22, 1922.
Milton R. Weinberger of counsel [ William Klein with him on the brief], for the appellant.
Eisenberg Eisenberg [ Jehial M. Roeder of counsel; Joseph Hirschman with him on the brief], for the respondent.
The action is upon a promissory note alleged to have been executed by the defendants at Boston, Mass., on January 31, 1911. By its terms the note matured one year from date, or on January 31, 1912. The defendant Louis Auerbach moved for judgment dismissing the complaint under rule 107 of the Rules of Civil Practice, upon the ground "that the cause of action did not accrue within the time limited by law for the commencement of an action thereon." From the affidavits submitted in support of the motion it appears that the said defendant, since November, 1911, has been a resident of this State. The defendant is thus entitled to the protection afforded by the Statute of Limitations of this State applicable to such a claim, namely, six years. ( Dalrymple v. Schwartz, 177 App. Div. 650; Isenberg v. Rainier, 145 id. 256, 258.) The Special Term held, however, that the question of the defendant's residence presented an issue which could not be decided upon affidavits, citing Dalrymple v. Schwartz ( supra). In that case there was only the uncorroborated testimony of the defendant, whereas in the case at bar the defendant's proof of residence is corroborated by the affidavits of four other persons. Plaintiff did not attempt in any way to controvert defendant's claim as to residence. No facts were shown, therefore, from which the court could infer that there was an issue to be tried. ( Dwan v. Massarene, 199 App. Div. 872.)
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the complaint as to the defendant Louis Auerbach dismissed, with costs.
CLARKE, P.J., DOWLING, MERRELL and GREENBAUM, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and complaint as to the defendant Louis Auerbach dismissed, with costs.