What actions must be commenced within ten years.

have accrued." Laws of 1871, ch. 733, § 2. It will be observed that the right of action against a sheriff for the non-payment of money collected upon an execution is left under the three years' limitation of the Code, § 92, subd. 1.

"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, when the action is brought by a private party. Code, § 96, subd. 1. As to actions by attorney-general or district attorney, see Code, § 96.

Section 14. What actions must be commenced within ten years. a. Equitable actions generally. All actions of an equitable nature, except those already noticed as coming within the six years' limitation (ante, ch. 3, art. 2, § 6), must be commenced within ten years after the cause of action shall have accrued. Code, $97.

In actions to compel the specific performance of contracts the statute begins to run from the time when the plaintiff might have brought his action, and he is chargeable with notice that his right is denied. A new cause of action is not created by a subsequent demand. Bruce v. Tilson, 25 N. Y. (11 Smith) 194;

Roberts v. Sykes, 8 Abb. 345; S. C., 30 Barb. 173.

The statute does not begin to run against a party in actual possession of property until actual eviction by the holder of the legal title, although his cause of action might have previously accrued. Bartlett v. Judd, 23 Barb. 262; 21 N. Y. (7 Smith) 200.

A suit for the enforcement of a mortgage, or a lien secured by deed (Borst v. Corey, 15 N. Y. [1 Smith] 505); a suit for the enforcement of a debt against the real estate of a testator in the hands of the devisee (Elwood v. Deifendorf, 5 Barb. 398); and an action for an account in respect of transactions between the cashier of a bank and the bank itself, with a view to ascertain the balance due and claimed by the plaintiff, as purchaser of all demands, at a judicial sale of the bank assets (Mann v. Fairchild, 14 Barb. 548), or a suit to redeem a real estate mortgage, are all equitable suits, and within the two years' limitation. Miner v. Beekman, 42 How. 33; 11 Abb. N. S. 147.

Section 15. Other statutory provisions.

a. Suits by or against persons in a representative capacity. The special statutory provisions relating to limitation of actions, in certain cases, will be briefly noticed in this article. By a

Other statutory provisions.

provision of the Revised Statutes (2 R. S. 448, § 8), "the term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of an action against his executors or administrators." And by section 9 "the time between the death of such person, and the granting of letters testamentary or of administration, not exceeding six months, and also six months after the granting of such letters, is not to be deemed any part of the time limited by law for the commencement of actions by executors or administrators. See ante, 51, § 9.

A claim disputed or rejected by an executor or administrator, and which has not been referred, must be sued upon within six months after such dispute or rejection, if the debt, or any part of it, be then due; or within six months after some part thereof shall become due, or be forever barred. 2 R. S. 89, § 38.

This provision is only applicable to cases where the presentation and rejection of the claim occurs after the publication of the notice requiring creditors to present their claims against the estate. Tucker v. Tucker, 4 Keyes, 136; Whitmore v. Foose, 1 Denio, 159.

The rejection of a claim by the executor or administrator must be express and final, to entitle him to the protection of the statute. Barsalou's Case, 4 Abb. 135.

b. Suits against heirs or devisees. No suit is allowed to be brought against the heirs or devisees of any real estate, in order to charge them with the debts of the testator or intestate, within three years from the granting of letters testamentary or of administration, upon the estate of their testator or intestate. 2 R. S. 109, § 53.

The title of a purchaser in good faith from heirs cannot be impaired, by virtue of any devise of their immediate ancestor, unless the will of such ancestor shall have been duly proved and recorded within four years from his death, except where disability or concealment exists, as specified under subdivisions 1 and 2, in which cases, the limitation is to commence from one year after the removal of the disability or from the delivery of the will to the devisee, or his representative, or to the proper surrogate. 1 R. S. 748, § 3.

c. Actions for dower. The time within which a widow is allowed to demand her dower is twenty years from the death of her husband; but if, at the time of such death, she be under

Actions brought in the name of the people.

the disabilities of infancy, insanity, or imprisonment, the time during which such disability shall continue is to be excluded from the term of twenty years. 1 R. S. 743, § 18.

d. Usury. An action to recover back money paid as usury must be brought by the payer or his representatives, within one year from the time of such payment, or within three years next after such one year, by the overseers of the poor, or county superintendent, or such action cannot be maintained. 1 R. S. 772, §§ 3 and 4.

e. Actions against stockholders. An action against a stockholder in a manufacturing company who shall cease to be a stockholder in such company, must be commenced within two years from the time that the defendant shall have ceased to be a stockholder. Laws of 1848, ch. 40, § 24.

When such corporation is indebted upon a promissory note, which is paid with the avails of a new note given by it for that purpose, such latter note will be a new debt, and if payable within one year, and sued within one year after it becomes due, the stockholders will be liable thereon. Fisher v. Marvin, 47 Barb. 159.

Section 16. Actions brought in the name of the people. Actions brought in the name of the people, or for their benefit, are subject to the same periods of limitation as those prescribed in like cases, in actions by private parties. Code, § 98.

ARTICLE IV.

GENERAL PROVISIONS AS TO THE TIME OF COMMENCING ACTIONS.

Section 1. Effect of acknowledgment or new promise. a. Promise must be in writing. An acknowledgment of the existence of a liability, barred by the statute of limitations, or a new promise on a subsisting demand, has the effect to revive the cause of action, and take the case out of the operation of the statute. As the statute of limitations operates upon the remedy merely and does not extinguish the debt, the original obligation, barred by the statute, is a valid consideration for a new promise, and besides, the party making the new promise may be considered as waiving the bar, and an action may be sustained upon the original obligation as the cause of action. Wallermire v. Westover, 14 N. Y. (4 Kern.) 16; Sands v. St. John, 36 Barb.

Effect of acknowledgment- Voluntary.

628; 23 How. 140; S. C. aff'd, 29 id. 574 (n.); Winchell v. Hicks, 18 N. Y. (4 Smith) 558. Previous to the adoption of the Code, a verbal acknowledgment, admission, or promise was sufficient; but now, under the provisions of that instrument, "no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby ; but this section shall not alter the effect of any payment of principal or interest." Code, § 110.

The following decisions are all to the effect that the new promise to revive the debt must be in writing. McLaren v. McMartin, 36 N. Y. (9 Tiff.) 88; S. C., 33 How. 449; 3 Abb. N. S. 345; 1 Trans. App. 226; Brookman v. Metcalf, 4 Rob. 568; S. C., 34 How. 429; Rowe v. Thompson, 15 Abb. 377; Hope v. Bogart, 1 Hilt. 544; Shapley v. Abbott, 42 N. Y. (3 Hand) 443.

The effect of a partial payment is the same now as it was before the Code, and furnishes evidence from which a new promise may be inferred. McLaren v. McMartin, 36 N. Y. (9 Tiff.) 88; S. C., 33 How. 449; 3 Abb. N. S. 345; 1 Trans. App. 226. See, also, Wakeman v. Sherman, 9 N. Y. (5 Seld.) 85; reversing S. C., 11 Barb. 254.

b. Must be voluntary. The promise or acknowledgment must be voluntary, unconditional, and such as implies a willingness to pay it as a subsisting demand. Bloodgood v. Bruen, 8 N. Y. (4 Seld.), 362; reversing S. C., 4 Sandf. 427. A compulsory acknowledgment, made in answer to a bill filed by a third person, or drawn out of the debtor while being examined as a witness, is not sufficient to raise the presumption of a promise to pay. Bloodgood v. Bruen, 8 N. Y. (4 Seld.) 362.

The acknowledgment must contain an unqualified admission of the debt, and show a willingness to pay it. Turner v. Martin, 4 Rob. 661; Commercial Mutual Insurance Co. v. Brett, 44 Barb. 489; Loomis v. Decker, 1 Daly, 186.

An assignment by an insolvent, enumerating a debt among his liabilities, is sufficient to take it out of the operation of the statute. Stuart v. Foster, 18 Abb. 305; S. C., 28 How. 273. But where a debtor proposed a compromise, declaring an unwillingness to pay if such compromise was rejected; held, not such a recognition as to take the case out of the statute. Creuse v. Defiganiere, 10 Bosw. 123.

How the statute is made available.

c. Must be made by party or agent. The acknowledgment or new promise must be made by the party to be charged, or by his authorized agent. Winchell v. Hicks, 18 N. Y. (4 Smith) 558.

An assignee for the benefit of creditors is not an agent authorized to renew a debt by a new promise. Pickett v. Leonard, 34 N. Y. (7 Tiff.) 175; affirming S. C., 34 Barb. 193. Nor can a surviving partner, as executor of his deceased partner, by a new promise, revive the debt against the estate of his deceased partVan Keuren v. Parmalee, 2 N. Y. (2 Comst.) 523; Bloodgood v. Bruen, 8 N. Y. (4 Seld.) 362. See McNamee v. Tenny, 41 Barb. 495.

ner.

There is no mutual agency between joint debtors by reason of their joint contract, hence, where one of several joint and several makers of a promissory note makes a payment upon it, before it is barred by the statute, such payment will not revive it, as to the other makers. Dunham v. Dodge, 10 Barb. 566; Shoemaker v. Benedict, 11 N. Y. (1 Kern.) 176. A partial payment by an executor or administrator is not sufficient to revive the demand against the estate of the deceased. McLaren v. McMartin, 36 N. Y. (9 Tiff.) 88; S. C., 33 How. 449; 3 Abb. N. S. 345; 1 Trans. App. 226. Nor will the admission of an executor bind the estate. Bloodgood v. Bruen, 8 N. Y. (4 Seld.) 362.

d. To whom made. The acknowledgment or promise must be made to the creditor or some one acting in his behalf, and not to a stranger. Wakeman v. Sherman, 9 N. Y. (5 Seld.) 85; reversing S. C., 11 Barb. 254; Bloodgood v. Bruen, 8 N. Y. (4 Seld.) 362; reversing S. C., 4 Sandf. 427; overruling, Phillips v. Peters, 21 Barb. 351; Watkins v. Stevens, 4 id. 168. A promise to pay a negotiable note barred by the statute, made to the holder, inures to the benefit of a subsequent holder, and it is sufficient if the promise be made to an attorney who has it for collection. Dean v. Hewitt, 5 Wend. 257; Pinkerton v. Baily, 8 id. 600.

Section 2. How the statute is made available. The statute of limitations can be availed of as a defense, only by answer; and this rule applies in all actions commenced since the adoption of the Code, though the cause of action accrued before. Lefferts v. Hollister, 10 How. 383.

A party omitting to plead the statute of limitations, and going to trial without doing so, although the claim proved against him