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PART III.

Periods of

bility; but such action shall not be commenced, or entry or defense made after that period.

2 Ab., 312.

CHAPTER III.

THE TIME OF COMMENCING ACTIONS OTHER THAN FOR THE RECOVERY OF
REAL PROPERTY.

SEC. 89. Periods of limitation prescribed.

90. Within twenty years.

91. Within six years.

92. Within three years.
93. Within two years.

94. Within one year.

95. When cause of action accrued, in an action upon a current account.

96. Actions for penalties, &c., by any person who will sue, when to be brought.

97. Actions for relief, not before provided for.

98. Actions by the people, subject to the same limitations.

$89. The periods prescribed in section seventy-four for limitation the commencement of actions other than for the recovery of real property, shall be as follows:

prescribed.

Within twenty years.

Within six years.

Within three years.

$90. Within twenty years:

1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States.

2. An action upon a sealed instrument.

12 N. Y., 639; 29 B., 283; 15 B., 174.

$91. Within six years:

1. An action upon a contract, obligation or liability, express or implied; excepting those mentioned in section 90. 2. An action upon a liability created by statute, other than a penalty or forfeiture.

3. An action for trespass upon real property.

4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property.

5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated.

6. An action for relief, on the ground of fraud; in cases which heretofore were solely cognizable by the court of chancery; the cause of action in such case not to be deemed to have accrued, until the discovery by the aggrieved party of the facts constituting the fraud.

26 B., 159; 11 B., 639; 7 B., 207; 13 Ab., 234; 21 How. P. R., 367.

$92. Within three years:

1. An action against a sheriff, coroner or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty; including the non-payment of money collected upon an execution. But this section shall not apply to an action for an escape.

2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such

party and the people of this state, except where the statute imposing it prescribes a different limitation.

13 Ab., 225.

$93. Within two years:

CHAP. XI.

Within two

1. An action for libel, slander, assault, battery, or false im- years. prisonment;

2. An action upon a statute, for a forfeiture or penalty to the people of this state.

$94. Within one year:

1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil process.

10 Ab., 143; 3 Ab., 87.

Within one

year.

cause of

crued in an

§ 95. In an action brought to recover a balance due upon a When mutual, open and current account, where there have been action acreciprocal demands between the parties, the cause of action action upon shall be deemed to have accrued from the time of the last a current item proved in the account on either side.

account.

penalties,

will sue.

14 N. Y., 227; 7 W., 322. $96. An action upon a statute for a penalty or forfeiture, Actions for given in whole or in part to any person who will prosecute &c., by any for the same, must be commenced within one year after the person who commission of the offense; and if the action be not commenced within the year by a private party, it may be commenced within two years thereafter, in behalf of the people of this state, by the attorney-general or the district attorney of the county where the offense was committed.

$97. An action for relief, not herein before provided for, must be commenced within ten years after the cause of action shall have accrued.

26 B., 361; 4 Ab., 350.

Actions for before pro

relief, not

vided for.

the same

$ 98. The limitations prescribed in this chapter shall apply Actions for the people to actions brought in the name of the people of this state or subject to for their benefit, in the same manner as to actions by private limitation. parties.

9 B., 296.

CHAPTER IV.

GENERAL PROVISIONS AS TO THE TIME OF COMMENCING ACTIONS.

SEC. 99. When action deemed to have been commenced.

100. Exception, where defendant is out of the state.

101. Exception, as to persons under disabilities.

102. Provision where person entitled, dies before the limitation expires.

103. In suits by aliens, time of war to be deducted.

104. Provision, where judgment has been reversed.

105. Time of stay of action by injunction or statutory prohibition to be deducted. 106. Disability must exist when right of action accrued.

107. Where two or more disabilities, limitation does not attach, till all removed.

108. This title, not applicable to bills, &c., of corporations, or to bank notes.
109. Nor to actions against directors or stockholders of moneyed corporations or
banking associations. Limitations in such cases prescribed.

110. Acknowledgment or new promise must be in writing.

tion deem

$99. An action is commenced as to each defendant when When acthe summons is served on him, or on a co-defendant, who is ed to have a joint contractor, or otherwise united in interest, with him. menced.

been com

PART III.

Exception where defendant is out of the

state.

Exception as to per

disabilities.

Provision

An attempt to commence an action, is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county, in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff or other officer of the county, in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt must be followed by the first publication of the summons, or the service thereof within sixty days.

As amended by Laws of 1851, ch. 479.

19 How. P. R., 54; 17 How. P. R., 478; 8 How. P. R., 500; 10 Ab., 473; 9 Ab., 64.

S100. If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.

As amended by Laws of 1851, ch. 479.

10 N. Y., 102; 26 B., 159.

S101. If a person entitled to bring an action mentioned in the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either:

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life; or

4. A married woman;

The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than five years by any such disability, except infancy, nor can it be so extended in any case longer than one year after the disability ceases.

Amended by Laws of 1851, ch. 479; 1852, ch. 392.
3 How. P. R., 385.

$ 102. If a person entitled to bring an action die before the son entitled expiration of the time limited for the commencement thereof, dies before and the cause of action survive, an action may be commenced

limitation

expires.

by his representatives, after the expiration of that time, and within one year from his death. If a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his

executors or administrator, after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration.

6 N. Y., 134; 26 B., 216; 29 B., 27; 14 W., 283.

CHAP. XI.

by aliens,

$103. When a person shall be an alien subject or citizen In actions of a country at war with the United States, the time of the time of continuance of the war shall not be part of the period limited deducted. for the commencement of the action.

23 B., 420; 21 B., 227.

war to be

where

has been

$104. If an action shall be commenced within the time Provisions prescribed therefor, and a judgment therein (for the plaintiff) judgment be reversed on appeal, the plaintiff, or if he die and the cause reversed. of action survive, his heirs or representatives may commence a new action within one year after the reversal.

See Laws of 1863, ch. 392.

stay by in

$105. When the commencement of an action shall be Time of stayed by injunction, or statutory prohibition, the time of junction or the continuance of the injunction, or prohibition, shall not be prohibition part of the time limited for the commencement of the action. to be de

3 How. P. R., 325.

ducted.

$106. No person shall avail himself of a disability, unless Disability it existed when his right of action accrued.

must exist when right

accrued.

$107. When two or more disabilities shall co-exist, at the of action time the right of action accrues, the limitation shall not Where attach until they all be removed.

3 How. P. R., 290, 350.

$108. This title shall not affect actions to enforce payment of bills, notes or other evidences of debt issued moneyed corporations, or issued or put in circulation money.

6 N. Y., 62; 3 How. P. R., 281.

several disabilities, all must be removed.

[blocks in formation]

actions

of moneyed

S109. This title shall not affect actions against directors Nor to or stockholders of a moneyed corporation, or banking asso- against diciations, to recover a penalty or forfeiture imposed, or to rectors, &c. enforce a liability created by law; but such actions must be corpora brought within six years after the discovery, by the aggrieved banking asparty, of the facts upon which the penalty or forfeiture Limitation attached, or the liability was created.

tions or

sociations.

in such

cases pre

Acknow

promise

$110. No acknowledgment or promise shall be sufficient scribed. evidence of a new or continuing contract, whereby to take ledgment the case out of the operation of this title, unless the same be or new contained in some writing signed by the party to be charged must be thereby; but this section shall not alter the effect of any writing. payment of principal or interest.

18 N. Y., 565; 12 N. Y., 639; 2 N. Y., 527; 21 B., 449; 20 B., 35; 15
B., 181; 11 B., 557; 7 B., 446; 9 Ab., 277; 6 Ab., 147; 2 Ab., 277;

2 E. D. S., 116; 1 Hilt., 545.

made in

PART III

Action to be in the name of real party

When ac

TITLE III.

OF THE PARTIES TO CIVIL ACTIONS.

SEC. 111. Action to be in the name of the real party in interest.

112. Assignment of a thing in action not to prejudice a defense.

113. Executor or trustee may sue without the person beneficially interested.
114. When married woman is party, her husband to be joined, except, &c.

115. Infant to appear by guardian.

116. Guardian, how appointed.

117. Who may be joined as plaintiffs.

118. Who may be joined as defendants.

119. Parties united in interest, when to be joined. When one or more may sue or
defend for the whole.

120. Plaintiff may sue in one action the different parties to commercial paper.
121. Action when not to abate by death, marriage, or other disability, &c. Pro-
ceedings in such case.

122. Court when to decide controversy, or to order other parties to be brought in. $111. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section In interest. one hundred and thirteen, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. But an action may be maintained by a grantee maintained of land in the name of a grantor, when the grant or grants are of land in void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision. Amended by Laws of 1851, ch. 479; 1862, ch. 460.

tion may be

by grantee

name of grantor.

Assign

ment of a

tion

prejudice a

22 N. Y., 392, 562; 20 N. Y., 362; 18 N. Y., 54, 127; 16 N. Y., 420; 13 N. Y., 336; 9 N. Y., 179, 212; 30 B., 47; 29 B., 344; 28 B., 252, 472; 24 B., 657; 23 B., 44; 22 B., 212, 365; 21 B., 281; 18 B., 512; 16 B., 258, 584; 14 B., 65, 491; 13 B., 233; 12 B., 19, 58; 11 B., 621; 10 B., 574; 9 B., 206; 8 B., 656; 7 B., 207; 20 How. P. R., 338; 17 How. P. R., 62, 78; 16 How. P. R., 549; 12 How. P. R., 166; 11 How. P. R., 97; 10 How. P. R., 235; 8 How. P. R., 343; 6 How. P. R., 53, 471; 13 Ab., 123; 10 Ab., 114; 6 Ab., 206; 2 Ab., 173; 1 Ab., 84, 179, 186: 3 Bos., 560; 1 Hilt., 115.

$112. In the case of an assignment of a thing in action, thing in ac- the action by the assignee shall be without prejudice to any tota set-off or other defense existing at the time of or before notice defense. of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.

Executor, &c., or trustee,

may sue without persons beneficially

16 N. Y., 420; 9 N. Y., 212; 29 B., 387; 27 B., 80; 22 B., 335; 21 B., 281; 18 B., 512; 13 B., 233; 7 B., 207; 13 How. P. R., 84.

$113. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within interested the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another.

When a married

As amended by Laws of 1851, ch. 479.

22 N. Y., 392, 562; 11 N. Y., 391; 9 N. Y., 179, 212; 25 B., 396; 23 B., 44; 22 B., 365; 15 B., 326; 14 B., 65, 357, 488; 7 B., 207; 7 Ab., 146; 1 E. D. S., 590; 1 Hilt., 115; 20 How. P. R., 338; 10 How. P. R., 235, 309; 8 How. P. R., 343; 6 How. P. R., 471; 5 Ab., 92; 4 Ab., 108, 130; 3 Ab., 453.

S114. When a married woman is a party her husband woman is a must be joined with her, except that

party.

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