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JUSTICE'S
MANUAL.

Provision
when

action is discontinued. etc., after

answer.

How objection taken,

chapter.

§ 412. Where a defendant in an action has interposed an answer, in support of which he would be entitled to rely, at the trial, upon a defence or counterclaim then existing in his favor, the remedy upon which, at the time of the commencement of the action, was not barred by the provisions of this chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death; the time which intervened, between the commencement and the termination of the action, is not a part of the time, limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him.

[New; designed to cover a casus omissus, of the same general character as that provided for by the last section. The courts have held that, where a counterclaim was admitted of record, the plaintiff could not discontinue without leave; but that he might discontinue of course, at any time before the time to reply had expired. Cockle v. Underwood, I Abb. Pr., 1; S. C., 3 Duer, 676; Seaboard, etc., Co. v. Ward, 1 Abb. Pr., 46; S. C., 18 Barb., 595; Oaksmith v. Sutherland, 4 Abb. Pr., 15; S. C., 1 Hilt., 265; Livermore v. Bainbridge, 61 Barb., 358; Leslie v. Leslie, 10 Abb., N. S., 64; Tubbs v. Hall, 12 id., 237. It is yet unsettled, whether a plaintiff has the general right to discontinue after replying, although, in Van Alen v. Schermerhorn, 14 How. Pr., 287, it was held, at special term, that leave to discontinue would be refused, where the statute of limitations would bar the defendant's remedy upon a counterclaim. This section not only provides for the case, intended to be covered by this somewhat unauthoritative decision, but also reaches many other cases, where an exercise of the general undoubted right to discontinue would be unjust to the defendant.]

§ 413. The objection, that the action was not commenced within under' this the time limited, can be taken only by answer. The corresponding objection to a defence or counterclaim can be taken only by reply, except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the

Cases to

which this

answer.

[Co. Proc., last clause of § 74, with the addition of the second sentence, which is in general harmony with the decision, in Williams v. Willis, 15 Abb., N. S., 11, a case decided since the corresponding section of the commissioners' first draft was printed.]

§ 414. The provisions of this chapter apply, and constitute the

PART II.

only rules of limitation applicable, to a civil action or special pro- chapter ceeding, except in one of the following cases:

1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties.

2. A cause of action or a defence which accrued before the first day of July, 1848. The statutes then in force govern, with respect to such a cause of action or defence.

3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in either of which cases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof.

4. A case, where the time to commence an action has expired, when this act takes effect.

The word, "action", contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action.

[New. The general language, at the commencement and conclusion of this section, will remove a source of constant doubt, as to the application of the statute to special proceedings (People v. Sup. Westchester, 12 Barb., 446), and to defences (per BACON, J., in Bartlett v. Judd, 21 N. Y., 200); and will sweep away whatever remnants may yet exist, of the antiquated doctrine, that equitable relief may be refused, upon stale demands, without reference to the statute. Derby v. Yale, 13 Hun, 273. Subd. 2 is necessary, because the provisions of the Code of Procedure, revised in this chapter, were prospective. Subd. 3 appears to be proper, instead of rendering this chapter wholly prospective, because the amendments, made thereby, relate only to the removal of imperfections in the original statute, and the prevention of possible abuses under it. But this chapter ought not, by any possibility, to be so construed as to revive a cause of action, which is barred when it takes effect; and, to guard against a question of that kind, which might arise under some of the provisions, extending the time limited by the former statutes, sub. 4 has been inserted.]

applies.

415. The periods of limitation, prescribed by this chapter, Mode of except as otherwise specially prescribed therein, must be computed periods of

computing

limitation.

MANUAL. from the time of the accruing of the right to relief by action, spe

JUSTICE'S

cial proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding.

[New; designed chiefly to regulate the application of the statute, to claims interposed in special proceedings, defences, and replies; but reaching, also, some other cases, where there is a doubt as to the time when the statute begins to run.]

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PART IL

CHAPTER V.
(EXTRACTS.)

COMMENCEMENT OF AND PARTIES TO AN ACTION.

TITLE I.

Commencement of an action.

ARTICLE FIRST.

THE SUMMONS AND ACCOMPANYING PAPERS; PERSONAL SERVICE THEREOF;
APPEARANCE OF THE Defendant.

tion, by a

of a per

whom to

serve a

during his

effect and

thereof.

430. A resident of the State, of full age, may execute, under Designahis hand, and acknowledge, in the manner required by law to entitle resident, a deed to be recorded, a written designation of another resident of son upon the State, as a person upon whom to serve a summons, or any process summons or other paper for the commencement of a civil special proceeding, absence; in any court or before any officer, during the absence from the United revocation States of the person making the designation; and may file the same, with the written consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county, where the person making the designation resides. The des‐ ignation must specify the occupation, or other proper addition, and the residence of the person making it, and also of the person designated and it remains in force during the period specified therein, if any; or, if no period is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal incompetency of either of the parties thereto; or by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. The clerk must file and record such a designation, consent, or revocation; and must note, upon the record of the original designation, the filing and recording of a revocation. While the designation remains in force, as prescribed in this section, a summons, or any process or other paper for the commencement of a civil

JUSTICE'S

MANUAL special proceeding, against the person making it, in any court or before any officer, may be served upon the person so designated, in like manner and with like effect, as if it was served personally upon the person making the designation, notwithstanding the return of the latter to the United States.

How per

Bonal service of

summons made

upon a domestic

corpora

tion.

Id.; upon a foreign corporation.

[New. The increasing frequency of protracted absences abroad, on the part of residents of the State, has made the want of any regulation, for the service of a summons or other process upon them, during their absence, a serious grievance, which this section is designed partly to remedy. Under the original law, in some cases they are liable to be proceeded against by publication; in others, the claimant is subjected to vexatious delay, for want of any means of compelling them to appear. A provision like this section, is demanded for the protection equally of the absentee and the claimant.]

§ 431.* Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof, within the State, as follows:

1. If the action is against the mayor, aldermen, and commonalty of the city of New-York, to the mayor, comptroller, or counsel to the corporation.

2. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the city lacks either of those officers, to the officer performing corresponding functions, under another

name.

3. In any other case, to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent.(*)

[Subd. 1 of this section has been taken from L. 1860, ch. 379, § 4; subd. 3 is subd. 1 of § 134 of the Code of Procedure, excluding that portion which relates only to foreign corporations; subd. 2 is new, but it is believed that the propriety of some provision of this character is evident. See § 2879.]

§ 432.* [Amended, 1877.] Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the State, as follows:

1. To the president, treasurer, or secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another name.

2. To a person designated for the purpose by a writing, under the

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