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§ 388. An action, the limitation of which is not specially pre- Actions scribed in this or the last title, must be commenced within ten years provided after the cause of action accrues.

Code Pro., § 97, amended. See 1 Wait's Pr. 61; Wait's Code, 106. An action to redeem land from the lien of a mortgage must be brought within ten years from the time the cause of action accrued. Miner v. Beekman, 14 Abb. N. S. 1; S. C., 50 N. Y. (5 Sick.) 337. See Depero v. Dewey, 46 How.441; S. C., 2 N. Y. Sup. Ct. (T. & C.) 515; Hubbell v. v. Medbury, 53 N. Y. (8 Sick.) 98. So, the limitation of ten years applies to the action of a judgment creditor to redeem property sold under mortgage. Hubbell v. Sibley, 5 Lans. 51; S. C. affirmed, 50 N. Y. (5 Sick.) 468. And such period of limitation has been held applicable to an action by a town to compel the surrender

and cancellation of bonds purporting
to have been issued by it, or under its
authority, brought against several of
the bondholders. Town of Venice v.
Breed, 1 N. Y. Sup. Ct. (T.,& C.) 130;
S. C., 65 Barb. 597.

It seems that all purely equitable
actions, except those for relief on the
ground of fraud, are to be brought
within ten years. Salisbury v. Morss,
7 Lans. 359; S. C. affirmed, 55 N. Y.
(10 Sick.) 675; Hubbell v. Sibley, 5
Lans. 51; S. C. affirmed, 50 N. Y. (5
Sick.) 468. And a court of equity has
no more power to disregard the statute
of limitations than a court of law.
4 Hun, 107; S. C., 6 N. Y. Sup. Ct.
(T. & C.) 392.

for.

to Actions people

§ 389. The limitations, prescribed in this title, apply alike actions brought in the name of the people of the State, or for their benefit, and to actions by private persons.

Code Pro., § 98. See People v. Williamsburgh Turnpike and Bridge Co., 47 N. Y. (2 Sick.) 586, 591.

by the subject to the same limita

tions.

against a

dent,

demand

§ 390. Where a cause of action, which does not involve the title Action to or possession of real property within the State, accrues against a non-resiperson, who is not then a resident of the State, an action cannot be upon a brought thereon in a court of the State, against him or his personal barred by representative, after the expiration of the time, limited, by the laws his resi of his residence, for bringing a like action, except by a resident of the State, and in one of the following cases:

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.

New provision.

the law of

dence.

person

etc., dies

the State.

§ 391. [Amended, 1877.] If a person, against whom a cause of When action exists, dies without the State, the time which elapses between liable, his death, and the expiration of eighteen months after the issuing, without 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.

New.

Cause of action

accruing

between

the death

of a testator or intestate, and the grant of letters.

No limi

tation of

§ 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.

§ 393. This chapter does not affect an action to enforce the payaction on ment of a bill, note, or other evidence of debt, issued by a moneyed corporation, or issued or put in circulation as money.

bank

notes,

etc.

Action against

etc., of banks.

Code Pro., § 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. Code Pro., § 109.

Acknowl-
edgment

or new
promise
must
be in

writing.

§ 395. An acknowledgment 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 section does not alter the effect of a payment of principal or interest.

Code Pro., 110; 1 Wait's Pr. 63, 64; Wait's Code, 110, 111.

The law does not require that the acknowledgment of a debt, to render it effectual under the statute, should be exclusively and wholly made by the debtor to the creditor. It will defeat the operation of the statute, if made to the creditor's agent, or some person acting for him or in his interest, who may be reasonably expected to com

municate it to him, and on which communication he may be expected to repose. Winterton v. Winterton, 7 Hun, 230. And where a payment of interest is made upon a promissory note by the maker, in the name of and as agent for an accommodation indorser, a subsequent recognition and approval of the act by the indorser, with full knowledge of the facts, is, as regards the statute of limitations, equally bind

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The promissory note of a third person, payable at a future time, indorsed and delivered by the defendant in payment of, or as security for, a part of his indebtedness, operates to take the case out of the statute as of the day of its delivery to the creditor, and not as of its payment. Smith v. Ryan, 7 Jones & Sp. 489.

An admission that a debt is unpaid, contained in a letter written on Sunday, is sufficient to remove the bar of the statute of limitations, and the letter is admissible for that purpose. Ayres v. Bane, 39 Iowa, 518; and see Thomas v. Hunter, 29 Md. 406.

tions,

§ 396. If a person, entitled to maintain an action specified in this Exceptitle, except for a penalty or forfeiture, or against a sheriff or other as to officer for an escape, is, at the time when the cause of action accrues, under diseither:

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; 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.

Code Pro., § 101. See Wait's Code, 108; Dunham v. Sage, 52 N. Y. (7 Sick.) 229.

The idiocy of a debtor does not take a claim out of the operation of

the statute of limitations during his
life-time, but the statute begins to run
against the claim the same as if he
were of sound mind. Sanford v. San-
ford, 62 N. Y. (17 Sick.) 553.

persons

abilities.

or coun

§ 397. A cause of action, upon which an action cannot be main- Defence tained, as prescribed in this title, cannot be effectually interposed as terclaim. a defence or counterclaim.

New provision.

TITLE III.

General provisions.

SEC. 398. When action deemed to be commenced.

399. Attempt to commence action in a court of record.

400. Id.; in a court not of record.

401. Exception, when defendant is without the State.

402. Id.; when a person entitled, etc., dies before limitation expires.

403. Id.; when a person liable, etc., dies within the State.

When action deemed to be com

menced.

Attempt to commence

SEC. 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.

407. Certain actions by a principal, for misconduct of an agent, etc.

408. Disability must exist when right accrues.

409. If several disabilities, no limitation until all removed.

410. Provision when the action cannot be maintained without a demand.

411. Provision in case of submission to arbitration.

412. Provision when action is discontinued, etc., after answer.

413. How objection taken, under this chapter.

414. Cases to which this chapter applies.

415. Mode of computing periods of limitation.

§ 398. [Amended, 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.

Code Pro., § 99, first sentence
amended. See 1 Wait's Pr. 501;
Wait's Code, 106, 107; Broadway
Bank v. Luff, 51 How. 479; Merritt v.
Scott, 3 Hun, 657; S. C., 6 N. Y. Sup.
Ct. (T. & C.) 160.

Where a joint judgment debtor is

summoned to show cause why he should not be bound by the judgment rendered on contract, he cannot set up as a defense to the original cause of action the statute of limitations. Gibson v. Van Derzee, 14 Abb. N. S. 111; S. C., 47 How. 231.

§ 399. An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against each defendant, a court of within the meaning of each provision of this act, which limits the

action in

record.

Id.; in a court not

time for commencing an action, when the summons is delivered, with the intent that it shall be actually şerved, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that 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.

Code Pro., § 99, paragraph 2, amended. The concluding sentence is new. See Wait's Code, 106, 107.

§ 400. The last section, excluding the provision requiring a pubof record. lication 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 corporation is located, as specified in that section; provided that actual service thereof is made with due diligence.

New.

tion,

defend

without

§ 401. [Amended, 1877.] If, when the cause of action accrues Excepagainst a person, he is without the State, the action may be commenced when within the time limited therefor, after his return into the State. If, ant is after a cause of action has accrued against a person, he departs from the State. 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.

Code Pro., § 100, with the addition of the concluding sentence, which is new. See 1 Wait's Pr. 50; Wait's Code, 107, 108; Bennett v. Cook, 43 N. Y. (4 Hand) 537; Myer v. Friedman, 7 Hun, 218.

Where the maker and the payee of a note, made in Pennsylvania, resided there, but afterwards removed into this State, and the former returned to

Pennsylvania after a three years' resi-
dence here, it was held that the stat-
ute of limitations ceased to run with
the maker's return to Pennsylvania,
and that this was so notwithstanding
he frequently came back, and was
openly in this State, with the knowl-
edge of the payee. Murray v. Fisher,
5 Lans. 98.

a person

etc., dies

§ 402. If a person, entitled to maintain an action, dies before the Id.; 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 expires. year after his death.

First sentence of § 102, Code Pro. And see Wait's Code, 108, 109; 1

Wait's Pr. 51; Dunham v. Sage, 52 N.
Y. (7 Sick.) 229.

limitation

a person

etc., dies

the State.

§ 403. If a person, against whom a cause of action exists, dies 1d.; when within the State, before the expiration of the time limited for the liable, commencement of an action thereon, and the cause of action sur- within vives against his executor or administrator, an action therefor may be commenced after the expiration of that time, and within eighteen months after his death, but not afterwards, unless letters testamentary or letters of administration are not issued within the State, until the expiration of six months after his death; in which case the action may be commenced within one year, after the letters are issued.

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