Edwin G. Moore, Respondent, v. William N. Coler, Sr., and Others, Appellants

Edwin G. Moore, Respondent, v. William N. Coler, Sr., and Others, Appellants. Statute of Limitations — when the mere production of a statute is insufficient to establish that it is the only statute affecting the case — the burden of proof rests Upon the party pleading the statute—judicial notice is not taken of the statutes of other State's. Where it is incumbent upon the plaintiff in an action to prove that in the State of Texas actions to recover on municipal bonds are governed by a four years’ Statute of Limitations, it is not sufficient for him to introduce in evidence a statute of the State of Texas providing, ‘ Every action other than for the recovery of real estate, for which no. limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward,” as non constat, hut that there are other statutes of the State of Texas providing a longer period of time in which an action may be brought upon such municipal bonds. When a Statute of Limitations- is a necessary part of' a plaintiff’s- cause of -action it is incumbent upon him to produce affirmative proof thereof. The courts of the State of New York do not take judicial notice of the statutes of another State. Appeal by the defendants,' William N. Coler, Sr., and others, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of-Clinton on the 18th day of November, 1904, upon the verdict of a jury, and also-from an order entered in said clerk’s office on the 17th day of November, 1904, denying the defendants’ motion for a new trial made upon the minutes. Thomas H. Rothwell, for the appellants. S. L. Wheeler and Henry E. Barnard, for the respondent. [MAJORITY — Chase, J.:] Chase, J.: The plaintiff is the owner of - bonds of the par-value of $3,900' issued by the county of Marion in the State of' Texas. Said bonds became due on the 1st day of July, 1893, and have not been paid. The defendants are bankers and brokers and the plaintiff has-recovered against them-in this action a judgment for $3,925.35 for damages by reason of their.having carelessly and negligently failed as the agents of the plaintiff to bring-a suit upon said bonds and put them into judgment before the Statute of Limitations of the State of Texas had become a bar to the plaintiff’s right to recover thereon. The paragraph of the plaintiff’s complaint relating to said Statute of Limitations is -as follows: “That in -the State of Texas, there is a Statute of Limitations which provides in substance that four years from the time a cause of action accrues upon bonds' of the character of the bonds hereinbefore referred to and mentioned all causes of action thereon are forever barred and that by reason of said statute, four years from the 1st day of July, 1893, all rights and causes of action and claims of this plaintiff under and by virtue of the aforesaid bonds were barred and forever foreclosed.” . The defendants by their answer deny any knowledge or information sufficient to form a belief as to said allegations of the complaint. On the trial of the issues the plaintiff offered in evidence section 335S of the Revised Statutes of the State of Texas, passed in 1895, which is as follows: “ Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward.” The offer of said section of the Revised Statutes of the State of Texas was included in an offer to read in evidence four other sections of said statutes, not relating, however, to the time of the limitation of actions. To the offer so made the defendants objected, among other things, “ that those sections alone were not sufficient to show that the Statute of Limitations had run.” The objections were overruled and the evidence was received and the defendants excepted. At the close of the plaintiff’s case the defendants moved to dismiss the complaint upon the ground, among others, “ that it does not appear that suit in Texas is barred by the Statute of Limitations; that the sections of the statute in evidence do not establish that suit was barred.” Again, at the close of all the evidence, the motion to dismiss was renewed. Both motions were denied, to which denials the defendants excepted. The justice presiding at the trial charged the jury that, “.according to the law of Texas as it is in evidence here, and which you must regard as the law controlling the contracts, an action to recover upon a debt must be brought within four years after the time it could be brought.” The defendants on the trial clearly and persistently insisted that said section of the Revised Statutes of Texas does not show that an action upon municipal bonds must be brought in that State within four years after they become due, and for the same reason, among others, they insist in this court that the judgment must be reversed. Assuming that the plaintiff has shown that the defendants, as his agents, were negligent as alleged by him, he should not recover in this action for said negligence unless he shows himself damaged thereby. The first essential affirmative fact to show that he has been damaged by such negligence is the fact that at the time that the plaintiff discovered such negligence the right to sustain an action on his bonds was barred by the Statute of Limitations of the State of Texas. Said section of the Revised Statutes of Texas does not show that an action brought at that tittle could not have been sustained. Peradventure, there are other sections of the statutes of that State prescribing a longer period of time in which to bring an action upon municipal bonds or evidences of indebtedness like those held by the plaintiff. The language of the section assumes that other statutes exist or may exist relating to specific causes of action. Said section, like section 388 of the Code of Civil Procedure in this State, is undoubt edly a statute passed to provide against a cause of action not specifically enumerated, being left without some limitation of time in which an action can be commenced thereon. The. courts of this State do not take judicial notice of the statutes of another State, (16 Cyc. 893.) The' Statute of Limitations of Texas applicable to municipal bonds being a necessary part of. the plaintiff’s cause, of action, it was necessary for him to produce affirmative proof thereof. (Robeson v. Central Railroad Co., 76 Hun, 444; Lavelle v. Corrignio, 86 id. 135.) Said section of said statute is not such affirmative proof. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.