Cooper & Company agt. Findlay.

will not raise the money," &c. We think the direction in the act of 1873, that the costs and expenses shall be audited by the board of supervisors and "levied upon the taxable property in said town, city or ward," is to be carried out by causing the same to be levied in the usual way provided for levying and collecting taxes in the city.

The order should be affirmed.

All concur.

NEW YORK SUPERIOR COURT.

HENRY PROUSE COOPER & COMPANY agt ALEXANDER D. FINDLAY.

Affidavit of merits - Merits of the application-Default-Affidavit of merits is not always sufficient — When absolute refusal to open justified.

On a motion to open a default an affidavit of merits is not always sufficient. An absolute refusal to open an inquest may be justified.

The party moving to open the default must state the grounds of his motion clearly, and under certain circumstances must meet the opposing affidavit.

General Term, April, 1886.

APPEAL from an order denying a motion to open a default. The appellant had moved at special term to open a judgment taken by default at trial term for $4,321. The motion was based on an affidavit and an affidavit of merits. The opposing affidavits put in by the plaintiff claimed that the defendant had admitted the embezzlement alleged in the pleadings, and that his counsel made a similar admission, and the said affidavits stated other grounds against granting the favor asked for. At special term the court denied the motion on the ground that "no merits had been disclosed."

John Lindley and Sutherland Tenney for appellant.

The default occurred through a mistake of the attorney..

Styles agt. Fuller.

The court never goes into the merits of a case when a verified answer and an affidavit of merits has been served.

W. G. Peckham and E. W. Tyler for respondent.

Probably judge FREEDMAN'S memorandum meant "no merits" in the application as on the papers submitted. Several cases hold that under the circumstances the defendant should be required to show specific merits (Dix agt. Palmer, 5 Hun, 233; Security Bank agt. Bank of Commonwealth, 2 id., 287; Hunt agt. Wallace, 6 Paige, 372). Defendants laches is against the motion (Melvine agt. Mathewson, 5 Law Bul., 51).

PER CURIAM.-The discretion of the judge was properly used. It would not have been proper to have opened the default. The statements as to the reason for the defendant not appearing are vague and indefinite, and the affidavit of merits was more than counterbalanced by the plaintiff's affidavits. The affidavit of merits would be true if the plaintiff had made an insignificant error in his demand.

Order affirmed, with ten dollars costs.

COURT OF APPEALS.

STYLES agt. FULLER

Practice-Action-Effect of bankruptcy of plaintiff after action begun, where the answer is a general denial.

The rights of parties to a legal action are to be determined as they were at its commencement, unless some event, happening subsequently, and affecting those already in issue, is presented by supplementary pleadings to the court, and the fact that plaintiff, after the commencement of the action, was declared a bankrupt, and that the cause of action had passed to his assignee, cannot be proven on the trial where the answer was a general denial.

Howe agt. Welch.

Edwin G. Davis, for appellant.

William F. MacRae, for respondent.

DANFORTH, J.-This suit was commenced in June, 1876. The complaint stated a good cause of action, and the answer of the defendant was in substance a general denial. The verdict of the jury upon the issues thus found was in favor of the plaintiff, and sustained his allegations. To defeat a recovery the defendant on the trial offered to prove that in May, 1877, the plaintiff was adjudged a bankrupt, and the alleged cause of action passed to his assignee. The offer was properly rejected. The rights of parties to a legal action are to be determined as they were at its commencement, unless some event, happening subsequently, and affecting those already in issue, is presented by supplemental pleadings to the court. Here the matter offered in evidence was not pleaded, and for that reason, if no other, was properly excluded. No other question is presented to justify this appeal. It should therefore fail, and the judgment be affirmed.

All concur, except MILLER, J. absent.

CITY COURT OF NEW YORK.

EPHRAIM HOWE agt. JAMES P. WELCH

Statute of Limitations-As applied to non-resident debtors-Code of Civil Procedure, section 390.

Except as limited by section 390 of the Code of Civil Procedure, that section extends to non-resident debtors the protection of the Statute of Limitations in all cases where it has run according to the laws of the debtor's residence.

In determining this question the foreign law, as interpreted by the local courts of the state whose statute is invoked, must prevail. In other

Howe agt. Welch.

words, under our Code foreign debtors are allowed to bring with them the protection which their home government gives them while there— nothing more.

The courts of this state will not construe foreign statutes, but must accept the interpretation the local courts of the particular state place upon them. Each state is the best interpreter of its local laws.

General Term, April, 1886.

APPEAL from an order setting aside a verdict directed in favor of the plaintiff, and ordering judgment for the defendant.

Stickney & Shepard and N. S. Spencer, for plaintiff.

Abbott Bros., for defendant.

MCADAM, C. J.-Prior to the amendment contained in section 390 of the Code, a plea of the Statute of Limitations of another state or country, where the contract was made or the debtor resided, was no bar to an action upon the contract in this state, because the lex fori governed (Miller agt. Brenham, 68 N. Y., 83). The axiom of the law "that where there is a discharge by the law of one state or country it will be a discharge in another," does not apply to statutory discharges, because the laws of the state under which the discharge was granted have no extra territorial force, and for that reason the laws of limitation of a foreign state or country cannot of themselves be pleaded in bar to an action in this state, unless with the consent of the state, or in other words, except under the sovereign authority of the laws of the forum. It is therefore solely to our polity and laws that we must look for a determination of the question as to how far the laws of limitation of foreign states or countries are to be respected here.

On grounds of state comity the legislature of this state, by an amendment contained in section 390 of the Code (with certain exceptions irrelevant to this case), extended to non-resident debtors the protection of the Statute of Limitations in all cases where it had run and effectually discharged the debt accruing

Howe agt. Welch.

to the laws of the debtor's residence (see Throops notes to sec. 390 of the Code). In other words, if the statute of their own state as construed and enforced by their own courts protected them, foreign debtors were allowed to leave their homes and bring within the protecting ægis of our statute the protection which their home government gave them—nothing more.

To go further would be to extend to residents of other states advantages greater than their own laws afforded, a construction which brings no logical reason to its support. The defendant came from Iowa, and under the statute of limitations of that state, as construed by the Iowa courts, the controlling authority as to the proper construction of their local statutes (Wharton on Conflict of Laws, sec. 776), the debtor's promise to pay, although conditional, amounted to an acknowledgment of the continued existence of the debt, negatived the presumption of payment, and saved the case from the operation of the statute. Not being outlawed in Iowa, the home of the debtor, the debt is not outlawed here by force of the state comity evidenced by the provisions of section 390 of our Code. State comity does not require the courts of this state to interpret the local statutes of Iowa differently than the courts of that state construe them, for if upon the same proofs offered here the plaintiff could have recovered a judgment in Iowa, if the defendant had been sued there instead of in this forum, the same result ought on logical principles to follow here. In other words, Iowa law should not. have one meaning there and another elsewhere.

This seems to us to be the proper test to be applied and the fair interpretation to be placed on the statute under examination, and the only one which can prevent an unseemly conflict of construction between the courts of the two states, a clash which every principle of state comity seems to require us to avoid. The trial judge therefore properly directed a verdict in favor of the plaintiff, but he erred in setting it aside and directing judgment for the defendant. The error was caused by ignoring the construction applied by the Iowa courts to their local statute, in Penley agt. Waterhouse (3 Iowa, 418), Bayliss