$73. 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provisions contained in the chapter of the Revised Statutes entitled" of actions and the times of commencing them," are repealed, and the provisions of this title are substituted in their stead.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. 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849, which amendment reads as above. 2. Q. How did this section read in 1848? 4. As follows: § 66. [1848.] The provisions contained in the second, third, fourth, fifth and sixth articles of the chapter of the Revised Statutes, entiled "of actions and the times of commencing them," are repealed, and the provisions of this title are substituted in their stead.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. Questions. 3. Q. Does this section, in any respect, apply to cases where the right of action accrued prior to the time the Code took effect? 4. Q. Is the limitation of 20 years prescribed by the Revised Statutes of 1830, for actions to recover dower applicable to cases where the husband died, and the wife's title accrued prior to 1830? 5. Q. What is the rule as to the computation of time, within which an action is to be commenced? 6. Q. Is there any statutory limitation of time within which a mandamus may be obtained? 7. Q. In an action by a subsequent indorser against a prior indorser to recover the amount paid by him to take up the note; when does the cause of action accrue? 8. Q. Does the statute of limitations in regard to the estate of deceased persons, apply to proceedings before the surrogate to collect the claim? 3. Q. Does this section, in any respect, apply to cases where the right of action accrued prior to the time the Code took effect? A. In Wood agt. Wood, 26 Barb., 360, General Term, January, 1858, BALCOM, J., it was decided, that where an action is brought to reach real estate which a testator devised to the defendants, and to have the same sold, for the purpose of satisfying a debt which the testator owed to the plaintiff, it is an action in rem, for equitable relief, of which the supreme court had not jurisdiction prior to the Code; and such action may be commenced at any time within ten years after the cause of action accrued. The provisions of the Code, relative to the time of commencing actions, do not apply to cases where the right of action accrued prior to the time the Code took effect? 4. Q. Is the limitation af 20 years prescribed by the Revised Statutes of 1830, for actions to recover dower, applicable to cases where the husband died, and the wife's title accrued prior to 1830? A. In Stewart agt. Smith, 14 Abb., 75, Court of Appeals, July, 1859, ALLEN, J., it was decided, that it seems that a right of dower accruing before the enactment of the Revised Statutes, is not affected by the limitation of the time for commencing the action prescribed by those statutes. Per contra. In Brewster agt. Brewster, 32 Barb., 429, General Term, May, 1860, HOGEBOOM, J., it was decided, that the limitation of 20 years, prescribed by the Revised Statutes for actions to recover dower, is applicable to cases where the husband died and the wife's title accrued previous to the passage of the Revised Statutes. 5. Q. What is the rule as to the computation of time within which an action is to be commenced? A. In McGraw agt. Walker, 2 Hilt., 404, General Term, April, 1859, HILTON, J., it was decided, that in computing the time within which an action must be commenced upon a note, the day on which a right of action accrued should be excluded. Therefore, a note becoming due October 4th, 1852, and an action upon it commenced October 5, 1858; the right of action accrued on October 5, 1852, and excluding that day from the computation, the suit was brought within the six years limited by statute. 6. Q. Is there any statutory limitation of time within which a mandamus may be obtained? A. In The People agt. The Supervisors of Westchester, 12 Barb., 446, Special Term, February, 1842, S. B. STRONG, J., it was decided, that there is no statutory limitation of the time within which writs of mandamus may be obtained, in this state. But where the party seeks the enforcement of a substantial right, by means of a mandamus, he should be allowed the time given by statute to obtain a reinedy for injuries essentially of a similar character, in the ordinary way, if that could be pursued. 7. Q. In an action by a subsequent indorser against a prior indorser to recover the amount paid by him to take up the note; when does the cause of action accrue ? 4. In Barker agt. Cassidy, 16 Barb., 177, General Term, January, 1858, GRIDLEY, J., it was decided, that in an action by a subsequent indorser, against prior indorsers, to recover the amount he has been compelled to pay, in a suit brought upon the note, the real cause of action is for money paid for the use of the defendants; and the statute of limitations will run from the time of paying the money, and not from the time when the note fell due. To authorize a recovery against the defendant, in such an action, it must appear in some legal way, that the money was paid for the use of the defendant. 8. Q. Does the statute of limitations in regard to the estate of deceased persons, apply to proceedings before the surrogate to collect the claim! A. In Barsalou's Case, 4 Abb., 135, Surrogates Court, New York County, January, 1857, BRADFORD, Surrogate, it was decided, that the provision of the Revised Statutes barring "any action" upon a claim against the estate of a deceased person, which is not sued within six months after its rejection by the executor or administrator, applies to and prohibits proceedings before the surrogate to collect the claim, as well as to actions in courts of law, strictly so called. The rejection of a claim by the executor or administrator, must be express and final, to entitle him to the protection of the statute. What is the result of the decisions under this section? 1. (3 Q.) An action to reach real estate, in rem, for equitable relief, in which the supreme court prior to the Code has no jurisdiction, may be commenced within ten years after the cause of action accrued, the right of action having accrued prior to the Code. This section does not apply to such cases. 2. (4 Q.) The limitation of 20 years prescribed by the Revised Statutes for actions to recover dower, is applicable to cases where the husband died and the wife's title accrued previous to the Revised Statutes. (There seems to be some difference of opinion on this question.-ED.) 3. (5 Q.) The day on which a right of action accrues upon a promissory note, should be excluded, in computing the time in which an action must be commenced upon it. 4. (6 Q.) There is no statutory limitation of the time within which writs of mandamus may be obtained. 5. (7 Q.) In an action by subsequent indorser against a prior indorser of a note to recover the amount he has been compelled to pay, the statute of limitations runs from the time of paying the money. 6. (8 Q.) Proceedings before surrogates to collect claims against the estates of deceased persons, are barred by the statute limitation of six months, after its rejection by the executor or administrator. $74. Time of commencing civil actions. 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. 1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849 and 1851, which last amendment reads as above. 2. Q. How did this section read in 1818 and 1849 ? A. As follows: 67. [1848.] The civil actions embraced within section 66, 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. § 74. [1849.] 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, à different limitation is prescribed by statute, and in the cases mentioned in section seventy-three. Questions. 3. Q. Can the statute of limitations operate as a bar, unless the objection is taken by answer? 4. Q. Is the statute of limitations only applicable to delay in proceeding to reform a contract, in accordance with the time previous, which it does not, but was supposed to contain? 5. Q. Can an executor cited to account before a surrogate avail himself of the statute of limitations in bar of a claim against the estate, the same as in a suit at law or in equity, for such claim? 3. Q. Can the statute of limitations operate as a bar, unless the objection is taken by answer? A. In Fellers agt. Lee, 2 Barb., 488, Special Term, February, 1848, PARKER, J., it was decided, that where it appears on the face of the complaint that the plaintiff's claim is barred by the statute of limitations, the defendant can avail himself of that defense by demurrer. But where the statute does not make the lapse of time an absolute bar but merely raises a presumption of payment, the defendant can only avail himself of that presumption under a plea of payment, or an allegation of payment, in his answer. Therefore, where a bill is filed to foreclose a mertage, and it appears on the face of the bill, that more than twenty years has elapsed since the money, secured by the bond and mortgage, became due; the defendant cannot insist upon the lapse of time, as a defense, by demurrer, In Lefferets agt. Hollister, 10 How., 383, Special Term, January, 1854, ROOSEVELT. J., it was decided, that although the Code is not applicable to previously existing causes of action, so far as the substantial rights are concerned, it does nevertheless regulate the forms by which parties are to avail themselves of their rights. And it is imperative that a defense setting up the statute of limitations, shall only be taken by answer. In Voorhies agt. Voorhies, 24 Barb., 150, Special Term, March, 1857, BIRDSEYE, J., it was decided, that where it appears from the complaint that the plaintiff has suffered twenty years after he arrived at his majority to pass by before bringing suit to recover possession of land conveyed by him during infancy, the objection can only be taken by answer--not by demurrer. In Butler agt. Mason, 16 How., 546, Special Term, June, 1857, CLERKE, J., it was decided, that it is irrelevant to insert an allegation in a complaint that the defendant has not resided at any time in the state, within six years before the commencement of the action, for the purpose of anticipating the defense of the statute of limitations, although the complaint would show on its face, without such allegation, that the claim was barred by the statute. The objection that the action was not commenced within the time limited can only be taken by answer. In Winchell agt. Bowman, 21 Barb., 451, General Term, April, 1856, S. B. STRONG, J., it was decided, that the statute of limitations does not abrogate a debt by the lapse of the limited time. The action, in cases of subsequent recognition, is brought upon the original contract, and the complaint counts upon that only. Although it should appear from the pleading that the contract, became effective more than six years before the commencement of the suit, that is no cause of demurrer, nor for a dismissal of the complaint. The rule has always been, and is now, that the statute can not operate as a bar unless the objection is taken by answer. In Atherton agt. Dalley, 20 How., 311, Special Term, December, 1860, HOGEBOOM, J., it was decided, that a defendant cannot avail himself of the statute of limitations in moving to vacate an order of arrest, where he has not set it up in his answer. In Sands agt. St. John, 23 How., 140, General Term, November, 1861, BALCOM, J., it was decided, that under the Code, the objection that the action, whether legal or equitable, was not commenced within the time limited by statute, can only be taken by answer; even where it appears on the face of the complaint, in an equitable action, that the statute of limitations is a bar to the action, the defendant cannot demur to the complaint. In Stewart agt. Smith, 14 Abb., 75, Court of Appeals, July, 1859, ALLEN, J., it was decided, that it seems that the defense of the statute of limitations must, in all cases, even where the cause of action accrued before the enactment of the Code of Procedure, be raised by answer. To the same effect see (Fagal agt. Pirro, 17 Abb., 121.) In Bihin agt. Bihin, 17 Abb., 20, General Term, October, 1863, SCRUGHAM, J., it was decided, that in accions for limited divorce, this section is equally applicable, and the objection that the action was not commenced within the time limited can only be taken by answer. In Van Vleck agt. Burroughs, 6 Barb., 344, General Term, May, 1819, PARKER, J., it was decided, that the same rule applies in proceedings before a surrogate, if executors or administrators seek to avail themselves of the statute of limitations, they must state such defense in time to enable the creditor to meet it by proof. It is too late to do so when the cause is submitted on written points, after the evidence is closed. 4. Q. Is the statute of limitations only applicable to delay in proceeding to reform a contract, in accordance with the true provisions, which it does not, but was supposed to contain? A. In Bidwell agt. Astor Mutual Insurance Co., 16 N. Y. R., 263, December, 1857, JOHNSON, J., it was decided, that in an action to reform a written contract, the length of time for which the instrument remained in the plaintiff's hands, without his asserting that it contains a different contract from that actually entered into, is only important as evidence bearing upon the probability, that a mistake has really been made. There is no rule of law fixing the period within which a person 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. 5. Q. Can an executor cited to account before a surrogate, avail himself of the statute of limitations in bar of a claim against the estate, the same as in a suit at law or in equity for such claim? A. In Martin agt. Gage, 5 Seld., 398, December, 1853, GARDINER, J., it was decided, that 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. In Tracy agt. Suydam, 30 Barb., 110, General Term, September, 1859, E. DARWIN SMITH, J., it was decided, that executors on a reference under the statute of disputed claims, are at liberty to make any defense that their testator could make, if alive, and the same were properly pleaded, in an action upon a claim presented to them, the justice of which is disputed. A set-off may be proved, or a payment in whole or in part; or proof given to reduce the amount; and may insist upon the statute of limitations, and if that defense is sustained, it is a complete answer to the whole cause of action. What is the result of the decisions under this section? 1. (3 Q.) Where a complaint on its face shows that the plaintiff's claim is barred by the statute of limitations, the defense may be taken by demurrer. This seems to be doubted by some of the following cases.-ED. But where the statute does not make the lapse of time an absolute bar, but merely raises a presumption of payment, the defense can only be taken by an allegation of payment in the answer. 2. This section is imperative, that a defense setting up the statute of limitations, shall only be taken by answer; and this rule applies to causes of action existing previous to the Code. 3. Where the complaint shows that the plaintiff has suffered 20 years after his majority to pass by before bringing suit to recover possession of land conveyed by him during infancy, the objection can only be taken by answer. 4. Although a complaint shows on its face that the claim is barred by the statute of limitations, it is irrevelant to insert therein any allegations anticipating such defense. The objection that the action was not commenced within the time limited can only be taken by answer. |