tion does not alter the effect of a payment of principal or in- N. Y. State terest. Rep. 674. § 396. If a person, entitled to maintain an action specified 5 Redf. 488. in this title, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, is, at the time when the cause of action accrues, either: 1. Within the age of twenty-one years; or, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time, limited in this title for commencing the action; except that the time so limited cannot be extended more than five years by any such disability, except infancy; or, in any case, more than one year after the disability ceases. § 397. A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim. TITLE III. General provisions. 2 398. When action deemed to 2 407. Certain actions by a prin be commenced. 399. Attempt to commence ac- 401. Exception, when defend- 403. Id.; when a person liable, etc., dies within the State. 404. In suits by aliens, time of disability in case of war to be deducted. 405. Provision where judgment cipal, for misconduct of 408. Disability must exist when 409. If several disabilities, no 410. Provision when the action § 398. [Am'd 1877.] An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or, on a co-defendant who is a joint contractor, or otherwise united in interest with him. Id. 282. 13 Civ. Pro. 278. 122 N.Y. 263. § 399. An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against 78 N.Y. 90; each defendant, within the meaning of each provision of this act, which limits the time for commencing an action, when the summons is delivered, with the intent that it shall be actually served, to the sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant or one or two or more co-defendants, who are joint contractors, or otherwise united in interest with him, resides or last resided; or, if the defendant is a corporation, to a like officer of the county, in which it is established by law, or wherein its general business is or was last transacted, or wherein it keeps or last kept, an office for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the sum 7 Civ. Pro. 323. 102 N. Y., rev'g. C. 672. 10 N. Y. State Rep. 339. 48 Hun, 97. 24 Hun, 130. 2 Dem. 29. 107 N.Y. 104, aff'g 6 N. Y State Rep. 521. 49 Hun, 439. 52 Hun, 383. 119 N.Y.344. mons to an officer must be followed, within sixty days after the expiration of the time limited for the actual commencement of the action, by personal service thereof upon the 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 or 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 authorized 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. § 401. [Am'd 1877, 1888.] If, when the cause of action ac crues against a person he is without the State, the action may be commenced within the time limited therefor, after his return into the State. If, after a cause of action has accrued against the person, he departs from and resides without the State and remains 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 within the State under a false name 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 subdivision second of section four hundred and thirty-two of this act remains in force. § 402. If a person, entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representative, after the expiration of that time, and within one year after his death. § 403 [Am'd 1879, 1891.] The term of eighteen months after the death, within this State, of a person against whom a cause of action exists, or of a person who shall have died within sixty days after an attempt shall have been made to commence an action against him pursuant to the provision of section three hundred and ninety-nine of this act, is not a part of the time limited for the commencement of an action against his executor or administrator. If letters testamentary or letters of administration upon his 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. § 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. S 405. If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated i any 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 expiraon of the time so limited, and within one year after such a versal or termination § 406. Where the commencement of an action has been 47 Hun, 539. stayed by injunction, or by other order of a court or judge, or 122 N.Y. 222. 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 recover 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 first 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 the right of action or of entry accrues, the limitation does not attach, until-all are removed. § 410. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the right to make the demand is complete; except in one of the following cases: 1. Where the right grows out of the receipt or detention of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time, when the person, having the right to make the demand, has actual knowledge of the facts, upon which that right depends. 2 Month. L. Bul. 14. 254 92 N. Y. 584, aff❜g 28 Hun 30 d. 537; 47 Id. 539; 50 Id. 574. 128 N. Y. 364. 4 Redf. 380. 13 Abb. N. C. 413. 2. Where 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. 491. 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 thereunder, is stayed by injunction, or other order procured by him 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 answer, in support of which he would be entitled to rely, at 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 chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death: the time which intervened between the commencement and 24 N.Y.State Rep. 295. 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, cr to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him. S413. The objection, that the action was not commenced within the time limited, can be taken only by answer. The 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. S414. The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases: 30 Hun, 537; 13 Abb. N. C. 413; 7 Civ. Pro. 323; 23 Abb. N. C. 479; 119 N. Y. 344. 133 N. Y. 512. 1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written 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. 3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in either of which cases, the provisions of law applcable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding 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. ARTICLE 1. The summons and accompanying papers; personal ser- 2. Substitutes for personal service in special cases. THE SUMMONS AND ACCOMPANYING PAPERS; PERSONAL SER- 2 426. How personal service of 427. 428. Id.; in certain cases of 433. Service of process, etc., to 434. Proof of service of sum- § 416. A civil action is commenced by the service of a 130 N. Y. 671. summons. But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy. $ 417. [Am'd 1877, 1879.] The summons must contain the 18 Abb. N. title of the action, specifying the court in which the action is C. 199. brought, the names of the parties to the action, and, if it is brought in the supreme court, the name of the county in which the plaintiff desires the trial; and it must be subscribed by the plaintiff's attorney, who must add to his signature his office address, specifying a place within the State where there is a post-office. If in a city, he must add the street and street number, if any, or other suitable designation of the particular locality. $418. [Am'd 1877.] The summons, exclusive of the title 130 N.Y. 571. of the action and the subscription, must be substantially in the following form, the blanks being properly filled : "To the above named defendant: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint. Dated The summons is deemed the mandate of the court. S 419. [Am'd 1879.] A copy of the complaint may be served with the summons. If a copy of the complaint is not served with the summons, the plaintiff cannot take judgment by default without application to the court, unless either the defendant appears, or by a notice is served with the summons, stating the sum of money for which judgment will be taken, and the case is one embraced in the next section. $ 420. [Am'd 1877.] Judgment may be taken without 21 Abb. N. *So in orginal. C. 330. |