note of the defendant's intestate became payable on the 5th of Feb- § 392. [Amended, 1877.] For the purpose of computing the time, within which an action must be commenced in a court of the State, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining, or injuring personal property within the same period; the letters are deemed to have been issued, within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof: in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. [New. As an action cannot be maintained, until there is a person in being, capable of suing, it has been frequently held that, in the cases contemplated in this section, the statute of limitations commences to run only from the grant of letters. Thus, in Bucklin v. Ford, 5 Barb., 393, the administrator of a son sued the executor of the father, for goods of the son, which came to the father's hands in 1828, after the son's death. The plaintiff's letters were granted in 1836; the defendant's testator died in 1838; and this suit was commenced in 1842, fourteen years after the transaction. It was held, upon the authority of several cases, that the action was in time. Other cases are known to have occurred, where actions have been maintained, upon the same principle, although commenced forty or fifty PART II. Cause of tween the action accruing be death of a testator or intestate, and the grant of letters. JUSTICE'S No limita tion of action on bank notes, etc. Action against etc., of banks. years after the transaction, and under circumstances of great hardship. It is well known that, where there is no will, and the property left by a decedent is small in amount, the surviving relatives, especially in the rural districts, frequently distribute the effects by mutual agreement, without incurring the expense and trouble of procuring administration. Generally, such distribution is made upon equitable principles; and the section is so framed as to save the few cases, where the statute of limitations should not cure the irregularity.] § 393. This chapter does not affect an action to enforce the payment of a bill, note, or other evidence of debt, issued by a moneyed corporation, or issued or put in circulation as money. [Co. Proc., § 108.] § 394. [Amended, 1877.] This chapter does not affect an action directors, against a director or stockholder of a moneyed corporation, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such an action must be brought within three years after the cause of action has accrued. Acknowledgment or new promise [Co. Proc., § 109; amended in 1877, so as to make the six years run from the time when the cause of action accrued, instead of the discovery of the facts.] § 395. An acknowledgment or promise, contained in a writing, signed by the party to be charged thereby, is the only competent must be in evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest. writing. Excep [Co. Proc., § 110.] § 396. If a person, entitled to maintain an action specified in this to persons title, except for a penalty or forfeiture, or against a sheriff or other tions, as under disabili- officer for an escape, is, at the time when the cause of action accrues, ties. either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution upon convic tion of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time, limited in this title for commencing the action; except that the time so limited cannot be extended more than five years by any such disability, except infancy; or, in any case, more than one year after the dis ability ceases. [Co. Proc., § 101.] § 397. A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim. [New.] PART II. Defence or counterclaim. TITLE III. General provisions. action deemed to be commenced. § 398. [Amended, 1877.] An action is commenced against a de- When fendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him. [Co. Proc., § 99, first sentence; amended so as to extend the provision to all cases where a limitation is fixed by statute. In the act of 1876, this section excepted a non-resident from the second clause relating to a case where the summons is served upon a person jointly liable with him. But the legislature, in 1877, struck out the exception. The commissioners inserted it to prevent doubts and confusion. The words, "or on a co-defendant who is a joint contractor, or otherwise united in interest with him", were first inserted in 1851; and it was feared that they might be so construed as to affect the rule, established by a series of decisions in our courts, touching the application of the statute, where one joint contractor is absent from the State, and the other remains therein. Bruen v. Bokee, 4 Denio, 56; Bogert v. Vermilyea, 6 Seld. (10 N. Y.), 447; Denney v. Smith, 18 N. Y., 567. Whatever may have been originally the intention of the legislature, in inserting these words, it would seem that the statute, as it stood when this act took effect, intended to leave the rule in question in full force; for, in 1866, the legislature struck out of § 379 of the Code of Procedure, the words, "except the statute of limitations" (L. 1866, p. 1844, § 15).] to com court of § 399.* An attempt to commence an action, in a court of record, is Attempt equivalent to the commencement thereof against each defendant, mence within the meaning of each provision of this act, which limits the record. time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that JUSTICE'S MANUAL defendant, or one of two or more co-defendants, who are joint contractors, or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county, in which it is established by law, or wherein its general business is or was last transacted, or wherein it keeps, or last kept, an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summons to an officer must be followed, within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the defendant sought to be charged, or by the first publication of the summons, as against that defendant, pursuant to an order for service upon him in that manner.(*) Id.; in a [Co. Proc., paragraph 2 of § 99, with several amendments, designed to remove obscurities and ambiguities. The provision has been extended to all cases where a limitation is fixed by statute, in conformity to a like amendment, in the last section; and the concluding sentence has been added. The reform, effected by the latter amendment, has been adopted in some of the states (R. S. of Wisconsin, ch. 138, § 27; 2 Swan & Cr., R. S. of Ohio, ch. 87, § 20); and was probably borrowed from a corresponding provision, inserted in § 99 of the Code of Procedure, by the amendment of 1851, but stricken out, in 1867 (Sess. L., p. 1921, 5). The provision appears eminently just and proper; and it was probably stricken out, because a plaintiff might sometimes be unable either to procure service, or to comply with the requirements of § 135 of the Code of Procedure, within sixty days. But this objection can be satisfactorily overcome, by adding the case where such an inability exists, to those where service may be made by publication. This has been done in ch. 5 (§ 438, subd. 6). The words, "in a court of record," have been added, in the first line, and other alterations have been made, which were necessary to confine the section to an action in a court of record. But this change does not effect any substantial alteration in the law, as provision has been made in the next section, for an attempt to commence an action in a court not of record. A sufficient reason may be found, for separating the provisions relating to the two classes of courts, in the obscurity produced by the attempt to include courts not of record in the original provision. An amendment, relating to joint contractors and those jointly interested, has been added, in accordance with the provisions of the last section, and to avoid abuses, for which the original section leaves room.] § 400. The last section, excluding the provision requiring a publiof record. cation or service of the summons within sixty days, applies to an attempt to commence an action, in a court not of record, where the summons is delivered to an officer authorized to serve the same, within the city or town, wherein the person resides or the corpora 184 tion is located, as specified in that section; provided that actual service thereof is made with due diligence. [New; explained in the note to the last section.] PART II. tion, fendant is without § 401. [Amended, 1877.] If, when the cause of action accrues Excepagainst a person, he is without the State, the action may be com- when demenced within the time limited therefor, after his return into the the State. State. If, after a cause of action has accrued against a person, he departs from and resides without the State, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time, limited for the commencement of the action. But this section does not apply, while a designation, made as prescribed in section four hundred and thirty, or in subdivision second of section four hundred and thirty-two, of this act, remains in force. [Co. Proc., § 100, adding the concluding sentence, which is new. The corresponding provision of the R. S., 2 R. S., 297, § 27 (p. 395 of the 3d ed.), was not applicable to real actions; but the section was made general by the Code of 1848, and has not since been changed. In Bennett v. Cook, 43 N. Y., 537, it was held, that a resident of New Jersey, doing business in New-York city, and attending openly at his office, during every business day, for ten hours, on an average, could not interpose the statute, as a defence to an action commenced seven years and five months after the cause of action accrued; the court remarking that, if he was entitled to any allowance, it could be only for ten hours, out of the twenty-four. This appears to be a harsh rule; but the commissioners did not think it expedient to propose to change the language of the statute. In Benjamin v. De Groot, 1 Denio, 151, it was held, under the first sentence, that where a debtor was abroad when the cause of action accrued, and remained abroad until his death, the statute commenced running from the time of granting letters in this State. Although that ruling is, doubtless, within the equity of the provision, it can hardly be called a construction of the statute; and a section (§ 391, ante) has accordingly been inserted, to meet all cases where the debtor dies abroad.] a person etc., dies § 402. If a person, entitled to maintain an action, dies before the rd.; when expiration of the time limited for the commencement thereof, and entitled, the cause of action survives, an action may be commenced by his before representative, after the expiration of that time, and within one year after his death. [Co. Proc., § 102, first sentence, corresponding to 2 R. S., 297, § 26 (p. 395 of 3d ed.), except that the latter is applicable only to personal actions.] limitation expires. |