Obrázky stránek
PDF
ePub

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. (Am'd 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.

b. Items of debit for the contract price of work, and of credits for payments, do not make a case of "reciprocal demands" (Peck v. U. S. & 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.

by

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 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.

897. Actions for other relief.

An action for relief, not herein before 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. (Am'd 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.

CHAPTER IV.

General provisions as to the time of commencing actions.

SECTION 99. When action deemed commenced.

100. Exception, defendant out of State.

101. Exception, as to person under disabilities.

102. Death of person entitled before limitation expires.

103. Suits by aliens.

104. Where judgment reversed.

105. Stay of action by injunction, &c.

106. Disability must exist when right accrued.

107. Two or more disabilities.

108. This title when not to apply.

109. The like.

110. New promise must be in writing.

$99. (Am'd 1849, 1851, 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.

b. 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; Nosser 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. Smith, 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; see 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 administrator 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. Scovil, 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. S. v. Vietor, 16 Abb. 153.

$104. (Am'd 1863.) Where judgment reversed.

If an action shall be commenced within the time prescribed

therefor, and a judgment therein be reversed on appeal, the plaintiff, or, if he die and the cause of action survive, his heirs or representatives may commence a new action within one year after the reversal.

See Long v. Fatheree, 7 Sme. & M. 404.

§ 105. (Am'd 1849.) Stay by injunction, &c.

When the commencement of an action shall be stayed by injunction, or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action.

a. The period during which a plaintiff has been restrained by an injunction from commencing an action is not to be reckoned, although the injunction was not served on him. It is sufficient if he had notice of it (Berrian v. Wright, 26 Barb. 208; see McQueen v. Babcock, 41 Barb. 337; Sands v. Campbell, 31 N. Y. 345).

§ 106. Disability, when its exists.

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

107. (Am'd 1849.) Several disabilities.

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

See section 101.

§ 108. Bills, &c., of corporations.

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

§ 109. (Am'd 1849.) Directors, &c. of moneyed corporations. This title shall not affect actions against directors or stockholders of a moneyed corporation, or banking associations, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within six years after the discovery, by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created.

« PředchozíPokračovat »