페이지 이미지
PDF
ePub

mons to an officer must be followed, within sixty days after the expiration of the time limited for the actnal commenre. ment of the action, by personal service thereof upon ile 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.

$ 400. The last section, excluding the provision requiring a publication of 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 a :thorized 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.

of Civ, Pro. $ 401. (Am'd 1877, 1888, 1896, amendment to take effect 323.

Seplember 1, 1896.) if, when the cause of action accrues 102, N. Y., against a person, he is without the state, the action may be 15 ább. N. commenced within the time limited therefor, after his re. C. 672. turn into the state. If, after a cause of action has accrned 141 N, Y. 612. against a person, he departs from the state and remains 148 N.Y, 306.

continuously absent therefrom for the space of one year or more, or if, without the knowledge of the person entitled to maintain the action, he resides with the state under a false Dame, the time of his absence or of such residence within the state under such false name 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 sub-division second of section four hundred and thirty-two of this act remainsin force. Nothing in this act contained shall revive any cause of action barred by the statute as it existed prior to the passage of this act.

10 N. Y.

$ 402. If a person, entitled to maintain an action, dies State Rep. before the expiration of the time limited for the commence. 339. ment thereof, and the canse of action survives, an action may

be commenced by his representative, after the expiration of that time, and within one year after his death.

48 Hun, 97.

§ 403. [Am'd 1879, 1891, 1896.] The term of eighteen 24 Hun, 130 months after the death, within the state, of a person against 2 Dem. 29. whom a cause of action exists, or of a person who shall have 107 N.Y. 104 died within sixty days after an attempt shall have been alls NY made to commence an action against him pursnant to the 621.

Rep provisions of section three hundred and ninety-nine of this 49 Hun, 439 act, is not a part of the time limited for the commencement 110 NY 409

141 Id. 409. of an action against his executor or administrator. If letters testamentary or letters of administration upon his 149 Id. 61 estate are not issued within the state, at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued, is not a part of the time limited for the commencement of such an action. The time during which an action is pending in a court of record between a person or persons and an executor or adminis. trator, wherein the person or persons claim to recover from the executor or administrator any money or other property claimed by said executor or administrator to belong to the estate of the decedent, or is embraced in the inventory of the assets of said decedent's estate, is not a part of the time limited for the commencement of an action against an executor or administrator, for a claim against the estate of the decedent until the final determination of the action brought to recover said or other property, claimed by said executor or administrator to belong to said decedent's estate :

1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator in an action in a court of record or nnder s ction twenty-seven hundred and eighteen of this code, after trial on the merits.

2. Where a legatee brings an action, or institutes a pro. ceediag against an executor or administrator with the will annexed, to enforce the payment of a legacy.

$ 404. Where a person is disabled to sue in the courts of the State, by reason of either party being an alien subject or citizen of a country at war with the United States, the time of the continuance of the disability is not a part of the time limited for the commencement of the action.

119 N.Y. 344.

$ 405. If an action is commenced within the time limited 52 Hun, 383. therefor, and a judgment therein is reversed on appeal, with.

145 N. Y. 414. out awarding a new trial, or the action is terminated in any 24 Mise. 456. LIMITATIONS.

$ 405

other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representatives may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.

[ocr errors][ocr errors][merged small][ocr errors][merged small][merged small]

C. 413.

$ 406. Where the commencement of an action has been tayed by injunction, or by other order of a court or judge, or 122 N.Y. 122

47 Hun, 639. by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action.

$ 407. Where an injury results from the act or omission of a deputy or agent, the time, within which an action to recurer damages by reason thereof, must be commenced by the principal, against the deputy or agent, must be computed from the time, when a judgment against the principal, for the act or omission, is arst recovered by the aggrieved person ; and a subsequent reversal or setting aside of the judgment does not extend the time.

$ 408. A person cannot avail himself of a disability unless 91 N. Y. 308. it existed when his right of action or of entry accrued. $ 409. Where two or more disabilities co-exist, when the

2 Month. L. the right of action or of entry accrues, the limitation does not

Bul. 14. aliach, until-all are removed. § 410. Where a right exists, but a demand is necessary

92 N. Y. 584, to entitle a person to maintain an action, the time, within aff'g 28 Hun which the action must be commenced, must be computed 30 ld. 637; from the time, when the right to make the demand is com

47 Id. 539; plete ; except in one of the following cases : 5 App. Div. 71. 50 Id. 574.

1. Where the right grows out of the receipt or detention of 128 N. Y. 364. money or property, by an agent, trustee, attorney, or other 4 Redf. 380.

13 Abb. N. person acting in a fiduciary capacity, the time must be computed from the time, when the person, having the right to jo App. Div. make the demand, has actaal knowledge of the facts, upon 416. which that right depends.

2. There there was a deposit of money, not to be repaid at a fixed time, but only upon a special demand, or a delivery of 99 N,Y. 41. personal property, not to be returned, specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the demand.

$ 411. Where the persons, who might be adverse parties in an action, have entered into a written agreement to submit to arbitration, or to refer the cause of action, or a controversy in which it might be available, or have entered into a written submission thereof to arbitrators ; and before an award, or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either party thereto, or by the act of the person against whom the action might have been brought ; or the execution thereof, or the remedy upon an award or other determination thereunkler, is stayed by injunction, or other order procured by bin from a competent court or judge; the time which has elapsed, between the entering into the written submission or agreement, and the revocation thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action. $ 412. Where a defendant in an action has interposed an

24 N.Y.State answer, in support of which he would be entitled to rely, at

Rep. 295. the trial, upon a defence or counterclaim then existing in his favor, the remedy upon which, at the time of the commencement of the action, was not barred by the provisions of this ebapter ; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintill's death;

the termination of the action, is not a part of the time, limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defence, or o interpose the same defence in another action brought by the saine plaintiff, or a person deriving title from or under

him. 14 N Y.

$ 413. The objection, that the action was not commenced State Rep. within the time limited, can be taken only by answer. The 27 Hun, 162. corresponding objection to a defence or counterclaim can be

taken only by reply ; except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the answer.

$ 414. The provisions of this chapter apply, and consti93 N. Y: 522, tute the only rules of limitation applicable, to a civil action or Y. Super.ct. special proceeding, except in one of the following cases : (J. & S.) 44. 30 Hun, 537; 13 Abb. N. C. 413; 7 Civ. Pro. 323; 23 Abb. N. C. 479 ; 119 144 N. Y.512. N. Y. 344. 133 N. Y. 612. 10 App. Div. 137. 48 N. Y. Sup

1. A case, where a different limitation is specially prescribed er. Ct (J. & by law, or a shorter limitation is prescribed by the written S.) 333.

contract of the parties.

2. A cause of action or a defence which accrued before the first day of July, eighteen hundred and forty-eight. The statutes then in force govern, with respect to such a cause of

action or defence. 94 N. Y. 217,

3. A case, not included in the last subdivision, in which a att k, !4

person is entitled, when this act takes effect, to commence an Week. Dig. action, or to institute a special proceeding, or to take any

177. proceeding therein, or to pursue a remedy upon a judgment, 101 N.Y. 563, where he commences, institutes, or otherwise resorts to the revig, 31

same, before the expiration of two ycars after this act takes Hun, 484.

effeet ; in either of which cases, the provisions of law applıcable thereto, immediately before this act takes effect, continue to be so applicable, not withstanding the repeal thereof.

4. A case, where the time to commence an action has expired, when this act takes effect.

The word “action,” contained in this chapter, is to be construed, when it is necessary so to do as including a special proceeding, or any proceeding therein, or in an action.

$ 415. The periods of limitation, prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding.

CHAPTER V.
COMMENCEMENT OF AND PARTIES TO AN ACTION.

TITLE I.-COMMENCEMENT OF AN ACTION.
TITLE II.-PARTIES TO AN ACTION.

TITLE I.

Commencement of an action.
ARTICLE 1. The summons and accompanying papers ; personal ser-

vice thereof; appearance of the defendant.
2. Substitutes for personal service in special cases.

ARTICLE FIRST.
THE SUMMONS AND ACCOMPANYING PAPERS ; PERSONAL SER

VICE THEREOF ; APPEARANCE OF THE DEFENDANT.

« 이전계속 »