871. Actions on judgments.

No action shall be brought upon a judgment rendered in any court of this State, except a court of a justice of the peace, between the same parties, without leave of the court for good cause shown, on notice to the adverse party; and no action on a judgment rendered by a justice of the peace, shall be brought in the same county within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or that the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment is or shall have been lost or destroyed.

a. Action on judgment.—An action cannot be brought upon a judgment of a district court, or the marine court of the city of New York, between the same parties, without leave of the court (Thompson v. Stutphen, 2 E. D. Smith, 527; Mills v. Winslow, id. 18). But an executor or administrator of a deceased judgment creditor (Wheeler v. Dakin, 12 How. 537), or a bona fide assignee of a judgment may sue upon the judgment without leave (Tuffts v. Braisted, 1 Abb. 84; 4 Duer, 607; Kopper v. Howe, 2 Hilton, 69); and an action in the nature of a creditor's bill may be brought without the leave of the court first obtained (Catlin v. Doughty, 12 How. 457; Quick v. Keeler, 2 Sand. 231; Dunham v. Nicholson, 2 Sand. 636). Where a justice's judgment is docketed in the county court, no action can be brought thereon without leave of the county court (Lyon v. Manley, 32 Barb. 51; 10 Abb. 337; 18 How. 267) A proceeding under section 375 is not an action on the judgment (Dean v. Eldridge, 29 How. 218; Prince v. Cujas, 7 Rob. 76; Lane v. Salter, 4 Rob. 239). A defendant may, without leave of the court, by answer, and as a set-off or counter-claim, rely on a judgment in his favor against the plaintiff (Wells v. Henshaw, 3 Bosw. 625), especially if he be an assignee of the judgment (Clark v. Story, 29 Barb 295).

b. In an action in a justice's court on a judgment, the complaint showed that the judgment had been docketed with the county clerk. The answer was that the action could not be maintained, because no action could be maintained on a judgment of the county court; held a sufficient statement of the objection that leave of the court was necessary (Lyon v. Manley, 10 Abb. 337; 32 Barb. 51; 18 How. 267).

e. No action can be maintained on a judgment for want of an answer obtained on a service of the summons by publication (Force v. Gower, 23 How. 294; Kane v. Cook, 8 Cal. 449; and see Fiske v. Anderson, 33 Barb. 71; 12 Abb. 8).

d. This section applies to judgments rendered before the code took effect (Finch v. Carpenter, 5 Abb. 225).

e. Bringing an action on a judgment without leave is an irregularity, which may be waived by the defendant not objecting in time or otherwise (Lane v. Salter, 4 Rob. 239). The proper remedy, where an action is brought upon a judgment without leave, in a case where leave is necessary, is by motion to set aside the summons and complaint (id. Finch v. Carpenter, 5 Abb. 225). On such a motion, leave to sue should not be granted nunc pro tunc, but the plaintiff should be left to a motion (id)

f. Joint stock companies.—As to actions on judgments against joint stock companies or associations, see laws 1853, p. 283. The members of a joint stock company cannot be sued as such, until after suit against the company as prescribed by statute, and a judgment and an execution returned unsatisfied (Robins v. Wells, 26 Barb. 15; Vanderbilt v. Garrison, 3 Abb. 361).

§ 72. Feigned issues abolished.

Feigned issues are abolished; and instead thereof, in the cases where the power now exists to order a feigned issue, or when a question of fact, not put in issue by the pleadings, is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of facts to be tried; and such order shall be the only authority necessary for a trial.

a. The former practice on feigned issues examined (Snell v. Loucks, 12 Barb. 385); and for present practice see Rule 33, Supreme Court.

§ 73. (Am'd 1849.) Repeal of existing limitations.

The provisions contained in the chapter of the revised statutes, entitled "Of actions and the times of commencing them," are repealed; and the provisions of this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form.

b. When limitation commences.-In computing the time within which an action is to be commenced, the day on which the right of action accrued is to be excluded (McCraw v. Walker, 2 Hilton, 404). The right of action for non-acceptance of a bill of exchange accrues from the non-acceptance (Whitehead v. Walker, 9 M. & W. 508).

c. The period which elapses between the death of a person, and the granting of letters testamentary on his estate, not exceeding six months, and the

period of six months after such letters are granted, are not part of the period of limitation (Coddington v. Carnley, 2 Hilton, 528).

a. In an action against surviving partners and the administrators of the deceased partner, the eighteen months which elapsed after the death of their intestate, is not as against the defendants, the administrators to be taken into account as part of the period of limitation (Parker v. Jackson, 16 Barb. 34).

b. For money received by a sheriff in an action to foreclose a mortgage or for partition, the cause of action begins to run when the sale is perfected (Van Nest v. Lott, 16 Abb. 130; Van Tassel v. Van Tassel, 31 Barb. 439).

c. The cause of action against a factor for money received by him, does not accrue until a demand of payment (Walden v. Crafts, 2 Abb. 301; Baird v. Walker, 12 Barb. 298).

d. Where a note is made in a foreign State, by residents of such State, payable to residents of this State, the cause of action on such note does not accrue until the makers come into this State (Carpenter v. Wells, 21 Barb. 593).

e. A cause of action for extra work accrues when said work was completed (Peck v. U. S. and Liverpool Mail Ship Co. 5 Bosw. 226).

f. There is no statutory limitation of the time within which a mandamus may be obtained (The People v. Supervisors of W. Chester, 12 Barb. 446).

9. As to the limitation contained in the "Act to provide for the incorporation of Insurance companies," see Howard v. Franklin Ins. Co. 9 How. 45.

h. When the statute begins to run against depositaries of moneys (Payne v. Gardiner, 29 N. Y. 146).

i. A condition in a policy of insurance that no suit shall be brought thereon, unless commenced within six months next after any loss, is binding (Roach v. N. Y. & Erie Ins. Co. 30 N. Y. 546).

j. For merchandise sold and delivered, but not furnished under any express agreement, the statute runs from the delivery (Turner v. Martin, 4 Rob. 661).

k. To redeem from mortgage (Peabody v. Roberts, 47 Barb. 92).

7. The cause of action of one in possession of land under an erroneous deed which he has an equitable right to have corrected, does not accrue until an attempt is made to disturb his possession (Bartlett v. Judd, 23 Barb. 263).

m. The equitable right to an action against the estate of a deceased partner of a firm, where the surviving partner is solvent at the time of the death and then becomes insolvent, accrues at the time the survivor becomes insolvent, and the period of limitation is ten years (Bloodgood v. Bruen, 8 N. Y. 362).

n. Between pledgor and pledgee, a cause of action for an accounting and redemption of a pledge accrues, and the statute of limitations attaches, at the time when the pledgor is entitled to redeem the pledge (Roberts v. Sykes, 8 Abb. 345; 30 Barb. 173).

6. In an action by a subsequent indorser against prior indorsers to recover the amount paid by him to take up the note, the cause of action accrues at the time of paying the money, not when the note fell due (Barker v. Cassidy, 16 Barb. 177); on a promissory note, payable on demand, the statute of limitations begins to run from its date (Howland v. Edmonds, 23 How. 152; 24 N. Y. 307; Hirst v. Brooks, 50 Barb. 334; and see Bell v. Yates, 33 Barb. 627; Howland v. Cuykendall, 40 Barb. 320; Colgate v. Buck ngham, 39 Barb. 177; Scoril v. Scovil, 43 Barb. 246; see Hope Ins. Co. v. Taylor, 2 Rob. 279).

p. The cause of action by a surety against his principal for money paid for him, accrues when the payment is actually made (Elwood v. Diefendorf, 5 Barb. 398).

7. A cause of action cannot accrue until there is in existence some one capable of suing or at least some one to be sued (Bucklin v. Ford, 5 Barb. 393). Thus, where A. received money due the estate of B. after the death of B., and before letters of administration of his estate issued, held in an action by C. the administrator of B., to recover such money of A., that the statute did not commence to run until letters of administration issued to C. (id.)

r. In an action against joint debtors commenced by service of the summons

on some only of the defendants before the statute limitation has expired, a defendant not served until after such limitation has expired cannot avail himself of the statute as a defense (Whites B'k of Buffalo v. Ward, 35 Barb. 637).

a. Statute of limitations applies to surrogates' courts (Smith v. Remington, 42 Barb. 75). An executor cited to account before a surrogate may avail himself of the statute of limitations in bar of any claim presented against the estate, in the same manner as in a suit at law or in equity upon such claim. A devise of real estate to an executor for the payment of debts generally, not specifying particular debts, or a known interest given to an executor for that purpose, does not prevent the running of the statute of limitations against debts which were due prior to the decease of the testator (Martin v. Gage, 9 N. Y. 398). The provisions of the revised statutes barring any action against the estate of a deceased person, not sued for within six months after its rejection by the executor, &c., applies to proceedings before the surrogate as well as actions at law (Barsalous Case, 4 Abb. 135; see Laws 1868, ch. 594).

b. A foreign corporation sued in this State cannot avail itself of the statute of limitations (Mallory v. Tioga R. R. Co. 5 Abb. N. S. 420; 36 How. 202; Olcott v. Tioga R. R. Co. 20 N. Y. 210; and see Thompson v. Tioga R. R. Co. 36 Barb. 79).

c. The lex fori governs all questions arising under the statute of limitations (Power v. Hathaway, 43 Barb. 214). The courts of this State do not notice the statutes of limitation of other States (Carpenter v. Wells, 21 Barb. 595; Toulandon v. Lachenmeyer, 6 Abb. N. S. 215; 37 How. 145).

d. A right of dower which accrued prior to the revised statutes taking effect, is not affected by them (Stewart v. Smith, 14 Abb. 75; contra, Brewster v. Brewster, 32 Barb. 428). The code does not apply to causes of action accrued prior to 1 July, 1848 (Glen Cove Mut. Ins. Co. v. Harrold, 20 Barb. 298).

e. Where a right of action had accrued previous to the code, and the debtor after the debt became due departed from the State, and resided out of it for different periods during a series of years, the successive absences are to be aggregated in computing the time, for the purpose of ascertaining whether the demand is barred by the statute (Berrien v. Wright, 26 Barb. 208; see post, § 100, and note).

f. The presumption of payment, arising under the statute of limitations, from lapse of time, is not that the payment was made at the expiration of the time fixed by the statute as a bar, but at some prior indefinite time, or when the obligation became due (Martin v. Gage, 9 N. Ÿ. 398; see N. Y. Life Ins. Co. V. Covert, 29 Barb. 436).

See section 110, and note; and Wood v. Wood, 26 Barb. 356.

$ 74. (Am'd 1849, 1851.) Limitation, Answer, &c.

Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute, and in the cases mentioned in section seventy-three.

But the objection that the action was not commenced within the time limited, can only be taken by answer.

g. There is no rule of law fixing the period within which a man may discover that a writing does not express the contract which he supposes it to contain, and which bars him of relief for delay in asserting his rights, other than that contained in the statute of limitations (Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 263).

h. Where it appears on the face of the complaint that the cause of action is

barred by lapse of time, the defendant cannot demur; he can avail himself of the statute bar only by answer; and this, whether the cause of action be of a legal or equitable nature (Sands v. St. John, 36 Barb. 628; 23 How. 140; Voorhies v. Voorhies, 24 Barb. 150; Fellers v. Lee, 2 Barb. 488), and whether it arose prior to or since the code took effect (Stewart v. Smith, 14 Abb. 75; Lefferts v. Hollister, 10 How. 383). The same rule applies in proceedings before a surrogate (Van Vleck v. Burroughs, 6 Barb. 341).

CHAPTER II.

Time of commencing actions for the recovery of real property.

SECTION 75.

When the people will not sue.

76.

77.

When action cannot be brought by grantee from the State. When actions by the people or their grantees, to be brought within twenty years.

78. Seisin within twenty years, when necessary.

79. Seisin within twenty years, when necessary in action or defense founded on title, &c.

80. Action after entry, or right of entry.

81. Possession, when presumed. Occupation, when deemed under legal title:

82. Occupation under written instrument, &c.

83. Adverse possession under written instrument, &c.

84. Premises actually occupied, held adversely.

85. Adverse possession under claim of title not written.

86. Relation of landlord and tenant, as affecting adverse possession.

$75. When the people will not sue.

The people of this State will not sue any person for, or in respect to, any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless,

1. Such right or title shall have accrued within forty years, before any action or other proceeding for the same shall be commenced; or unless,

2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years.

See People v. Rennselaer, 8 Barb. 189; People v. Livingston, id. 254; People v. Arnold, 4 N. Y. 508.

$76. Action not to be brought by grantee from State.

No action shall be brought for, or in respect to, real property, by any person claiming by virtue of letters patent, or grants from the people of this State, unless the same might have been commenced by the people, as herein specified, in case such patent or grant had not been issued or made.