The People ex rel. Lent agt. Carr.

court except the judges of the court of appeals, the justices of the supreme court, and the judges of the superior court and court of common pleas of the city of New York, of the superior court of the city of Buffalo, and of the city court of Brooklyn.

That the limitation as to age was intended to apply to the judges and justices of those courts is too clear to be capable of misapprehension. The only other officer or body having judicial powers, mentioned in the sections of article 6 preceding section 13, is the commission of appeals. That high tribunal had power, under section 4, to hear and determine certain causes pending in the court of appeals; and by section 5 it was provided that the decisions of the commission should be entered and enforced as the judgments of the court of appeals. But the commission was not designated in the constitution as a court, nor the commissioners as judges, but as commissioners, and it was therefore assumed that the disqualification of age under section 13 did not apply to them, for it is a matter of history that one venerable commissioner held his office without question for several years after he had passed the age of seventy; and in the case of Settle agt. Van Evera (49 N. Y., 280), it was decided that section 27 of article 6, which prohibits any judge of the court of appeals from acting as referee, did not apply to a commnissioner of appeals because he was not a judge of the court.

All the provisions of article 6 of the constitution bearing upon the question at issue which precede sections 13 and 14 have now been examined, and we next come to section 15, relating to county courts. This section continues the existing county courts and provides that the judges thereof then in office shall hold their offices until the expiration of their respective terms, and that their successors shall be chosen by the electors of the counties for the term of six years. These judges come literally within the words of the constitution, for they are judges of courts designated as such by the constitution (People agt. Gardner, 45 N. Y., 812; People ex rel.

The People ex rel. Lent agt. Carr.

Joyce agt. Brundage, 78 N. Y., 403). No judicial officer, other than those who have been already named, is in any part of the constitution designated as a judge or justice of any court.

Justices of the peace are mentioned in section 15, and they exercise judicial powers. Two justices of the peace, together with the county judge, compoзe courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and such justices inay also exercise jurisdiction to a limited extent in civil cases and may hold courts for that purpose. At the same time they exercise other powers. They are in numerous sections of the constitution designated not as judges or justices of any court, but as justices of the peace, and are elected under that designation, and on these grounds it was decided in the late case of People agt. Mann (97 N. Y., 532) that they did not come within the disqualification of age contained in section 13 of article 6.

Surrogates are throughout all the provisions of article 6 designated as officers by that name, and not as judges or justices of any court. By section 15 of article 6 it is provided that the county judge shall also be surrogate of his county, but that in counties having a population exceeding 40,000 the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of the county judge, which is six years. By section 19 the legislature is empowered, on application of the board of supervisors, to provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate in cases of their inability or of a vacancy.

In section 25 surrogates are coupled with justices of the peace and other local judicial officers. Section 27 refers to surrogate's courts, and for their relief authorizes the legislature to confer upon courts of record in any county having a population exceeding 40,000, the powers and jurisdiction of surrogate. In no part of the constitution are surrogates mentioned as judges or justices of any court, and at the time of

The People ex rel. Lent agt. Carr.

the adoption of article 6, surrogate's courts were not even courts of record, they having been first declared to be such in the Code of 1880.

Reading the clause of section 13, which imposes the disqualification by reason of age, in connection with all the other provisions referred to, it seems to us more reasonable to suppose that the people who voted for the adoption of article 6 understood the disqualification as applying to persons who, in the constitution itself, were in express terms designated as judges or justices of courts, and were popularly known as such and elected by those designations, than to assume that the voters so minutely analyzed the nature of the functions of officers elected under other names as to discover that some of their duties were of a judicial character, and that therefore they might, though not named as such, be construed to be judges. In interpreting constitutions regard must be paid to the popular sense in which words are generally used (People agt. Goodwin, 50 Barb., 562; Commonwealth agt. Dallas, 4 Dall., 218; Gibbon agt. Ogden, 9 Wheat., 188; Settle agt. Van Evera, 49 N. Y., 280).

The constitutional provision in question is quite clear and intelligible as applicable to persons popularly known as judges or justices of courts, and named as such in the constitution itself, but we think it would be unwarrantable to extend it by construction to every officer exercising judicial powers, though not commonly known as a judge or justice of a court, but elected by a different title.

The legislature of 1870, which immediately followed the adoption by the people of the judiciary article (art. 6), clearly indicated its understanding of the disqualification in accordance with the views above expressed. The act of 1870 (chap. 86) was passed for the purpose of carrying into effect the provisions of the judiciary article, and section 8 of that act required all the judges and justices of the courts named in article 6, viz., the judges of the court of appeals, the justices of the supreme court, the judges of the court of comVOL. II 64

The People ex rel. Lent agt. Carr.

mon pleas and of the superior courts of the cities of New York and Buffalo, and of the city court of Brooklyn, and judges of county courts, to file in the office of the secretary of state a certificate of their age, for the purpose undoubtedly of showing whether they would be disqualified by age from holding their offices before the expiration of the term for which they were elected. It will be observed that there was no provision requiring surrogates or justices of the peace to file any such certificate, clearly indicating that in the judg ment of the legislature the disqualification did not apply to those officers.

This legislative action, so closely following the adoption of the constitutional provision, is entitled to great consideration by the court in construing the provision (MARSHALL, C. J., in Cohen agt. Virginia, 6 Wheat., 420; MARCY, J., in People agt. Green, 2 Wend., 274; CHURCH, C. J., in People agt. Brundage, 78 N. Y., 403).

Our conclusion is that the office of surrogate of Westchester will not become vacant on the thirty-first of December next by reason of the present incumbent, surrogate Coffin, having attained the age of seventy years in July last, and that the secretary of state was right in refusing to give notice of the election of a successor.

The orders of the special and general terms should therefore be reversed and the motion for a mandamus denied, with costs.

All concur.

Howe agt. Welch.

CITY COURT OF NEW YORK.

EPHRAIM HOWE agt. JAMES P. WELCH.

Code of Civil Procedure, section 390 - · Statute of limitations of a foreign stateWhen a defense to action brought here - New promise to pay 'when able" - Burden on plaintiff to prove ability to pay.

Before the adoption of the Code of Civil Procedure, the statute of limitations of a foreign state constituted no defense to an action brought here, but section 390 of the Code of Civil Procedure has changed the rule to some extent.

In this case the cause of action does not come within the exceptions of section 390, for the reasons: First. The cause of action did not originally accrue in favor of a resident of this state, but in favor of a resident of the state of Ohio. Second. Because before the expiration of the period of limitation the person in whose favor the cause of action originally accrued did not become a resident of the state of New York as he lived and died in Ohio; and because, Third. The cause of action was not assigned before the expiration of the time so limited to a resident of this state.

Where it is sought to revive a debt barred by the statute of limitations by a new promise to pay "when able" the burden is on the plaintiff to prove ability to pay. Failure to establish the conditions upon which the new promise was made is a failure to revive a debt barred by the statu'e of limitations.

Special Term, November, 1885.

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

Abbott Bros. and Albert A. Abbott, for defendant.

BROWNE, J. — This is an action brought to recover a balance upon a promissory note for $1,000, dated February, 1868, due February, 1869, drawn by the defendant to the order of John Gregg, who at the time resided in Ohio and continued to reside there until his death in 1877. Administrators of Mr. Gregg's estate were appointed upon his death, who also resided in Ohio up to August 12, 1884, when they assigned the note in question to the plaintiff, a resident of this city.