existed between any persons, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years after the last payment of rent; notwithstanding that the tenant has acquired another title, or has claimed to hold adversely to his landlord. But this presumption shall not be made, after the periods prescribed in this section. $374. The right of a person to the possession of real property is not impaired or affected, by a descent being cast, in consequence of the death of a person in possession of the property. $375. If a person, who might maintain an action to recover real property, or the possession thereof, or make an entry, or interpose a defence or counterclaim, founded on the title to real property, or to rents or services out of the same, is, when his title first descends, or his cause of action or right of entry first accrues, either: 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction 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, or making the entry, or interposing the defence or counterclaim; except that the time so limited cannot be extended more than ten years, after the disability ceases, or after the death of the person so disabled. TITLE II. Actions other than for the recovery of real property. 376. When satisfaction of judg ment presumed. 377. Effect of return of execu- 378. How presumption raised. 386. When cause of action ac- 387. Action for penalty, etc., by any person who will sue. 388. Actions not before provided for. 389. Actions by the people sub ject to the same limita tions. 390. Action against a non-resi- 391. When person liable, etc., 393. No limitation or action on 395. Acknowledgment or new 396. Exceptions, as to persons 19 Hun, 184; 25 Hun, 2379 Abb. N. C. 315. 107 N. Y. 104. 53 Hun, 611. § 376. [Am'd 1877, 1894.] A final judgment or decree for a sum of money, or directing the payment of a sum of money, heretofore rendered in a surrogate's court of the state, or heretofore or hereafter rendered, in a court of record within the United States, or elsewhere, or hereafter 121 N.Y. 626. docketed pursuant to the provisions of section thirty 144 N. Y. 498. hundred and seventeen of this act, is presumed to be paid 17 App. Div. 596; 28 Id. and satisfied, after the expiration of twenty years from the 91. time when the party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive, ex 26 Hun, 173. 59 State Rep. 516. 81 Hun, 259. 142 N. Y. 534. 26 Hun, 173. 116 N. Y. 351. 134 N.Y. 139. 102 N. Y. 423. 23 Abb. N. C. 479. 7. Hun, 307. 31 Hun, 129, 11 Misc. 380. 48 N. Y. Super. Ct. (J. & 8.) 211. 37 Hun, 397. 148 N. Y. 1. 62 How. Pr. 255. 41 Hun, 600; cept as against a person who within twenty years from that time, makes a payment or acknowledges an indebtedness of some part of the amount recovered by the judgment or decree, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing, and signed by the person to be charged thereby. § 377. If the proof of payment, under the last section, consists of the return of an execution partly satisfied, the adverse party may show, in full avoidance of the effect thereof, that the alleged partial satisfaction did not proceed from a payment made, or a sale of property claimed, by him, or by a person whom he represents. § 378. A person may avail himself of the presumption created by the last section but one, under an allegation that the action was not commenced, or that the proceeding was not taken, within the time therein limited. . § 379. An action to redeem real property from a mortgage, with or without an account of rents and profits, may be maintained by the mortgagor, on those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises, for twenty years after the breach of a condition of the mortgage, or the non-fulfillment of a covenant therein contained. § 380. The following actions must be commenced within the following periods, after the cause of action has accrued. $ 381. [Am'd 1877.] Within twenty years: An action upon a sealed instrument. But where the action is brought for breach of a covenant of seizin, or against incumbrances, the cause of action is for the purposes of this section only, deemed to have accrued upon an eviction, and not before. § 382. [Am'd 1877, 1894.] Within six years: aff'd in 102 N. Y. 494; 13 Abb. N. C. 413; 42 Hun, 628; 115 N. Y. 80; 31 NY. State Rep. 17: 123 N. Y. 152; 134 N. Y. 139; 140 Id. 150; 15 Misc. 556; 152 N. Y. 529; 28 App. Div. 91. 1. An action upon a contract obligation or liability, express or implied; except a judgment or sealed instrument. 9 N. Y. State Rep. 716. 2. An action to recover upon a liability created by statute; except a penalty or forfeiture. 3. An action to recover damages for an injury to property, or a personal injury; except in a case where a different period is expressly prescribed in this chapter. 53 N.Y. Super, Ct. (J. & S.) 331; 5 App. Div. 582. 148 N. Y. 1. 87 N. Y. 87. Id. 160, affg 9 Daly, 279. 48 N. Y. Super. Ct. (J. & S.) 454. 9 N. Y. State Rep. 701. 147 N.Y. 411. 157 N. Y. 70. 4. An action to recover a chattel. 5. An action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case which, on the thirty-first day of December, eighteen hundred and forty-six, was cognizable by the court of chancery. The cause of action, in such a case, is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. 6 N. Y. Supp. 4; 25 N. Y. State Rep. 575; 26 Id. 714; 116 N. Y. 351; 23 Misc. 423. 6. An action to establish a will. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts upon which its validity depends. 7. An action upon a judgment or decree, rendered in a court not of record, except where a transcript shall be filed, pursuant to section thirty hundred and seventeen of this act, and, also, except a decree heretofore rendered in a surrogate's court of the state. The cause of action, in such a case, is deemed to have accrued when final judgment was rendered. $ 383. [Am'd 1877.] Within three years: 1. An action against a sheriff, coroner, constable, or other officer, for the non-payment of money collected upon an execution. 25 Hun, 237. 7 Civ. Pro. 240. 32 N. Y. State Rep. 21 92 N. Y. 584, affig. 28 Hun, 254. 2. An action against a constable, upon any other liability 22 Misc. 488. incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except an escape. 3. An action upon a statute, for a penalty or forfeiture, 156 N. Y. 551. where the action is given to the person aggrieved, or to that person and the people of the State; except where the statute imposing it prescribes a different limitation. 4. An action against an executor, administrator, or receiver, or against the trustee of an insolvent debtor, appointed, as prescribed by law, in a special proceeding, instituted in a court or before a judge, brought to recover a chattel, or damages for taking, detaining, or injuring personal property, by the defendant, or the person whom he represents. 5. An action to recover damages for a personal injury, resulting from negligence. (J. & S.) 44; 109 N.Y. 311, aff'g, 35 Hun, 44; 112 N.Y. 559, rev'g 14 Civ. Pro. 248; 13 Week. Dig. 418. § 384. [Am'd 1896.] Within two years: 1. An action to recover damages for libel, slander, assault, battery, seduction, criminal conversation, false imprisonment or malicious prosecution. 2. An action upon a statute, for a forfeiture or penalty to the people of the state. § 385. Within one year: 1. An action against a sheriff or coroner, upon a liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except the non-payment of money collected upon an execution. 2. An action against any other officer, for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate. 105 N.Y. 503. 47 Hun, 18. 93 N. Y. 522, aff g 48 N. Y. Super.Ct. 4 Monta. L. Bul. 7. 49 Hun. 368. § 386. In an action brought to recover a balance due 2 Dem. 630. upon a mutual, open, and current account, where there have 7 Civ. Pro. been reciprocal demands between the parties, the cause of 282. action is deemed to have accrued from the time of the last 5 App. Div. item, proved in the account on either side. $387. An action upon a statute for a penalty or forfeiture, given wholly or partly to any person who will prosecute for the same, must be commenced within one year after the commission of the offence; and if the action is not commenced within the year by a private person, it may be commenced within two years thereafter, in behalf of the people of the State by the Attorney-General, or the districtattorney of the county where the offence was committed. 587. § 388. An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within 14 Abb. N. ten years after the cause of action accrues. C. 13. rev'g 36 Hun, 100; 16 N. Y. State Rep. 46; 51 Hun, 511; 53 Id. 611; 25 142 N. Y. 1. N. Y. State Rep. 641; 133 N. Y. 512; 5 App. Div. 71. 67 N. Y. 185. 517. LIMITATIONS. §§ 389-395 § 389. The limitations, prescribed in this title, apply alike to actions brought in the name of the people of the State, or for their benefit, and to actions by private persons. $390. Where a cause of action, which does not involve 17 App. Div. the title to or possession of real property within the State, accrues against a person, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time, limited, by the laws of his residence, for bringing a like action, except by a resident of the State, and in one of the following cases: 8 Id. 455. 1. Where the cause of action originally accrued in favor of a resident of the State. 2. Where, before the expiration of the time so limited, the person, in whose favor it originally accrued, was or became a resident of the State; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State. § 391. [Am'd 1877.] If a person, against whom a cause of 1 Hun, 344; action exists, dies without the State, the time which elapses between his death, and the expiration of eighteen months after the issuing, within the State, of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator. 2 City Ct. 26. 89 Hun, 112. 33 App. Div. 371. 28 Hun, 16. Dem. 29. 107 N. Y. 346, 4 N. Y. Supp. 896, rev'g 11 § 392. [Am'd 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 disbility, 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. § 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. § 394. Action against directors, etc., of banks. [Am'd 1877, 1897, amendment to take effect September 1, 1897.]— This chapter does not affect an action 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 the common law or by statute; but such an action must be brought within three years after the cause of action has accrued. § 395. An acknowledgement or promise, contained in a writing signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this see tion does not alter the effect of a payment of principal or in- N. Y. State terest. $396. If a person, entitled to maintain an action specified in this title, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, is, at the time when the cause of action accrues, either: 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a terin 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 disability ceases. Rep. 674. 5 Redf. 488. 769. $397. A cause of action, upon which an action cannot be 26 N.Y.Supp. maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim. TITLE III. General provisions. 398. When action deemed to 2 407. Certain actions by a prin be commenced. 399. Attempt to commence action in a court of record. 400. Id.; in a court not of re- 401: Exception, when defend- etc., dies within the State. 404. In suits by aliens, time of disability in case of war to be deducted. 405. Provision where judgment has been reversed. 406. Stay by injunction, etc to be deducted. $398. [Am'd 1877.] An action is commenced against a defendant, 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. Id. 282. 122 N. Y. 263. 81 Hun, 207. $399. An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against 78 N.Y. 90; each defendant, within the meaning of each provision of this act, which limits the 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 defendant or one or 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 sum 156 N.V. 327. |