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the statute has commenced running, the case cannot be taken out of the statute by a demand and refusal of the property, made after the defendant had parted with the property (id., and see Bruce v. Tilson, 25 N. Y. 194).
a. An action to enforce an equitable lien for the purchase-money of land, must be brought within six years. The debt is the cause of action (Borst v. Corey, 15 N. Y. 505).
b. One entrusted with a note for collection, and who receives the money, is not a trustee; and an action for the money must be within six years (Hickok v. Hickok, 15 Barb. 632).
c. A debt of an administrator for which a judgment has been recovered, is regarded as a simple contract debt, and must be prosecuted within six years (Bill v. Miller, 17 How. 300).
d. Under a general retainer to an attorney to prosecute an action, his right to costs against his client accrues on his perfecting judgment, and the statute limitation commences to run against his claim for costs from the time such judgment is perfected (Adams v. Fort Plain B’k, 23 How. 45; 2 Trans. App. 234).
6. The statute of limitations is a bar to a recovery for the use of goods for any period antecedent to six years before action brought (Rider v. Union Rubber Co. 5 Bosw. 86).
f. An action in the nature of a creditor's bill is limited to six years after the return of the execution unsatisfied (Eyre v. Beebe, 28 How. 333).
g. In an action for fraud the statute does not commence to run until knowledge of the fraud is brought to plaintiff (Gates v. Andrews, 5 Trans. App. 176; 37 N, Y. 657.
h. See In the matter of the Estate of Delacroix, deceased, 1 Brad. Sur. Rep. 1; Mayne v. Griswold, 3 Sand. 463 ; Coleman v. Second Av. R. R. 6 Trans. App. 148, and ante, page 74 a.
$ 92. (Amd 1849.) Three years. 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 nonpayment 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 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.
i. An action to charge defendants, as trustees of a manufacturing corporation, with personal liability for debts of the company, on the ground of omission to file report as required by law, and declaring improper dividends, must be commenced within three days after the cause of action accrued (Merchants B'k of N. Haven v. Bliss, 35 N. Y. 412).
j. An action to recover goods wrongfully taken by a sheriff under an execution, must be brought within three years from the day the levy was made (Coddington v. Carnley, 2 Hilton, 528; Dennison v. Plumb, 18 Barb. 89).
k. As to time of limitation in an action against a stockholder of the Rossie Galena Co. individually, under the act incorporating that company, see Corning v. McCullough, i How. App. Cas. 126.
a. Action against sheriff for omitting to return an execution must be brought within three years (Peck v. Hurlburt,46 Barb. 559).
$ 93. Two years. . Within two years :
1. An action for libel, slander, assault, battery, or false imprisonment.
2. An action upon a statute, for a forfeiture or penalty to the people of this State.
$ 94. One year. Within one year :
1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil process.
$ 95. (Amd 1849.) Action upon a current account.
In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.
6. Jtems of debit for the contract price of work, and of credits for payments, do not make a case of“ reciprocal demands ” (Peck v. U. 8. & Liverpool Mail Ship Co. 5 Bosw. 226).
c. Where a current account exists between parties, and one of them purchases from a third party an open account against the other without notice to or recognition of its validity by the latter, such purchased account does not become a part of the current account, and is barred in six years from the time it accrued (Green v. Ames, 14 N. Y. 225).
d. There must be items of account on both sides to make a mutual account Hallock v. Losse, 1 Sand. 220; and see Ogden v. Astor, 4 id. 312).
e. Payment of all the items of a bill except one, the accuracy of which was denied, held not to prevent the statute running (Peck v. U. S. & Liverpool Mail Ship Co, 5 Bosw. 226).
$ 96, Actions for penalties, &c.
An action upon a statute for a penalty or forfeiture, given in whole or in part to any person who will prosecute for the same,
, must be commenced within one year after the 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, Actions for other relief.
An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued.
a. In actions for specific performance, the time of limitation begins to run from the time the plaintiff might bring his action and has notice his right is denied. A new cause of action is not created by a subsequent demand (Bruce v. Tilson, 25 N. Y. 194; Roberts v. Sykes, 1 Abb. 345).
§ 98. (Amd 1849.) Actions by the people.
The limitations prescribed in this chapter shall apply to actions brought in the name of the people of this State, or for their benefit, in the same manner as to actions by private parties.
General provisions as to the time of commencing actions.
100. Exception, defendant out of State.
$ 99. (Am'd 1849, 1861, 1867.) Action commenced.
An action is commenced as to each defendant when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him.
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.
6. Commencement of action.—The delivery of a summons to the sheriff to be served, with an intent to have it served, is the commencement of an action (Davis v. Duffie, 18 Abb. 360). But only for the purpose of defeating the statute of limitations (Knight v. Beach, 7 Abb. N. S. 241). The mere issuing of a summons is not the commencement of an action for general purposes (Kerr v. Mount, 28 N. Y. 659); where the service of the summons is by publication, the action is not commenced until the expiration of the time prescribed for publication (Moore v. Thayer, 10 Barb. 258; 6 How. 47; see Buckhardt v. Sanford, 7 How. 329; Re Griswold, 13 Barb. 412 ; No88er v. Corwin, 36 How. 540; McCarthy v. Peake, 18 How. 138). The endorsement, by a sheriff, or other officer, of the time of a receipt of a summons, is not of itself evidence of the fact, so as to show the time of the commencement of the action (Wardwell v. Patrick, 1 Bosw. 406). When the plaintiff files with his judgment roll proof of the service of the summons, he is concluded by such proof as to the time of such service (Burroughs v. Reiger, 12 How. 170). See $ 139, post.
$ 100. (Am'd 1849, 1851, 1867.) Defendant out of State.
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 or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.
a. Absence.-Successive absences can be accumulated, and the aggregate deducted from the time elapsed after the accruing of the cause of action (Cole V. Jessup, 10 How. 515 ; 10 N. Y. 96; Harden v. Palmer, 2 E. D. Smith, 172 ; Berrian v. Wright, 26 Barb. 208; see ante, $ 73, note).
b. A temporary absence from the State, without change of residence, does not prevent the running of the statute during such absence (Hickok v. Bliss, 34 Barb. 321). Absence by various journeys during six years amounting, in the aggregate, to one year, held not a sufficient finding of absence to warrant a judgment against a defendant who had set up the statute as a defense (id.).
c. The absence of one joint debtor from the State, suspends the running of the statute of limitations against him, although his co-debtor has remained within the State (Denny v. Šmith, 18 N. Y. 567). It is otherwise in the case of one of two joint and several debtors (Bogert v. Vermilya, 10 N. Y. 447; and see 2 N. Y. 523; 3 How. 316); and after a joint contract has been severed by the death of one of the parties, the survivor cannot, by any act of his, keep the statute of limitations from running against or revive the debt as to the representatives of such deceased joint contractor (Lane v. Doty, 4 Barb. 530). d. A foreign corporation
is a person out of the State within this section (Thompson v. Tioga R. R. Co. 36 Barb. 79; Olcott v. Tioga R. R. Co. 20 N. Y. 210). Where, at the time the cause of action accrued, the defendant is a citizen of and resident in another State, the period of limitation does not commence to run until he comes into the State (Carpenter v. Wells, 21 Barb. 594); and in such a case, to create a bar, there must be a presence in the State for the full period of limitation (Gans v. Frank, 38 Barb. 320; Powers v. Hathaway, 43 Barb. 214; sec McCord v. Woodhull, 27 How. 54; Davis v. Kinney, 1 Abb. 440).
§ 101. (Am’d 1849, 1851, 1852, 1870.) Persons under disabilities. 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;
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.
a. Since the law of 1860 the statute of limitations ran against a married woman in certain cases (Ball v. Bullard, 52 Barb. 141).
$ 102. (Am'd 1849.) Death of person entitled.
If a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced 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 adıninistrator after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration.
See Bucklin v. Ford, 5 Barb. 393; Parker V. Jackson, 16 ib. 34; Scovil v. Scoril, 45 id. 517; and Murray v. E. I. Co. 5 B. & A. 204, Laws 1868, ch. 594.
$ 103, Action by alien enemies.
When a person shall be an alien subject or citizen of a country at war with the United States, the time of the continuance of the war shall not be part of the period limited for the commencement of the action.
b. Who is an alien enemy? See U. 8. v. Vietor, 16 Abb. 153.
$ 104. (Am'd 1863.) Where judgment reversed. If an action shall be commenced within the time prescribed