6. A stated account between partners, cannot be opened unless by fraud in making it up; which frand was not discovered, and with reasonable diligence could not have been discovered, until within six years previous to the commencement of the suit. 7. The purchase from a third person, by one party who has a mutual, open and current account with another, of an open account against the latter, without notice or recognition by the latter, it does not become a part of the mutual account between them, in reference to the statute of limitations. The demand, so purchased, becomes barred by the lapse of six years from the time it accrued to the assignor-although it was assigned before the statute attached. 8. The payment of a bill containing items of extra work, within six years before suit brought, except one item, the accuracy of which was denied, bars all right of action for such item at the end of six years from the time the alleged service was performed. 96. Actions for penalties, &c., by any person who will sue, when to be brought. (Same as § 76 in 1848.) 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; and if the action be not commenced within the year by a private party, it may be commenced within two years thereafter, in behalf of the people of this state, by the attorney-general or the district attorney of the county where the offense was committed. $97. Actions for relief, not before provided for. (Same as § 77 in 1848.) An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued. Questions. 1. Q. Must the actions to which this section was intended to apply, be of purely equitable cognizance—and will the section apply to any other? 2. Q. Does this section apply to bills for relief on the ground of fraud, in any case? 3. Q. When does the statute of limitations run against defendant's relief for the reformation of his deed in an action of ejectment against him? 4. Q. When does the statute of limitations begin to run in reference to an equitable action for specific performance of a contract? 5. Q. When does the statute of limitations bar an action to reform a written contract for the sale of lands, on the grounds of mistake, accident or inadvertence? 1. Q. Must the actions to which this section was intended to apply, be of purely equitable cognizance? and will the section apply to any other? A. In Elwood agt. Diefendorf, 5 Barb., 398, Special Term, June, 1848, PAIGE, J., it was decided, that where a devisee enters upon the land devised to him charged with the payment of debts, and promises to pay them, a court of law has no jurisdiction of an action against him for the recovery of the debts, unless the land is exclusively charged with their payment. If the personal estate is to be first applied in payment of the debts, or is to come in aid of the real, the cause belongs exclusively to a court of equity; and a court of common law has no jurisdiction. And in cases where a court of equity has exclusive jurisdiction, the only limitation applicable to the demand is the ten years limitation of suits in equity. In Bloodgood agt. Bruen, 4 Seld., 365, June, 1853, MASON, J.. it was decided, that the equitable right to an action against the estate of a deceased partner of a firm, where the surviving partner is solvent at his death and then becomes insolvent, arises at the time the survivor becomes insolvent, and is barred in ten years therefrom. In Wood agt. Wood, 26 Barb., 360, General Term, January, 1858, BALCOM, J., it was decided, that an action 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, is an action in rem, for equitable relief, of which the supreme court had not jurisdiction previous to the Code; and may, therefore, be commenced at any time within ten years after the cause of action accrued." In Roberts agt. Sykes, 30 Barb., 175, Special Term, April, 1859, SUTHERLAND, J., it was decided, that where stock is pledged as security for the payment of a note, the pledgor's equitabe action to redeem the stock accrues or commences when the note becomes due; and if such action is not brought within ten years from that time, it will be barred by the statute of limitations. 2. Q. Does this section apply to bills for relief on the ground of fraud in any case? A. The answer to this question will be found under section 91, Q. 6. 3. Q. When does the statute of limitations run against defendants relief for the reforma tion of his deed in an action of ejectment against him? A. In Bartlett agt, Judd, 21 N. Y. R., 205, March, 1860, BACON, J., it was decided, that in an action of ejectment for premises, which the defendant claims was excepted on a sheriff's sale from a larger tract, and that he have equitable relief by a reformation of his deed according to the facts, the statute of limitations (ten years) against such relief by the defendant, does not commence to run until the defendant is charged with knowledge of the plaintiff's assertion of a claim to the premises, under the deed, inconsistent with the actual exception made at the sheriff's sale. 4. Q. When does the statute of limitations begin to run in reference to an equitable action for specific performance of a contract? A. In Bruce agt. Tilson, 25 N. Y. R., 195, September, 1862, ALLEN, J., it was decided, that where a vendee being entitled to a conveyance of land, and of a profit a prendre in adjoining premises, accepted a deed of the land only, protesting that he relinguished no right. The vendor did not expressly deny the right of the vendee to a further conveyance, but declined then to execute on account of the opposition of his wife. And after the lapse of ten years the vendee assigned his claim and the assignee demanded performance; held, that he was barred by the statute of limitations. A party entitled to a conveyance upon request, may bring his action for specific performance without request. A previous demand is only important in equity in reference to costs. The statute of limitations begins to run at the time the plaintiff might bring his equitable action, and is charged with notice that his right is denied; as new cause of action cannot be created by a subsequent demand of specific performance. 5. Q. When does the statute of limitations bar an action to reform a written contract for the sale of lands, on the ground of mistake, accident or inadvertence? A. In Oakes agt. Howell, 27 How., 145, General Term, March, 1864, ALLEN, J., it was decided, that an action to reform a contract or instrument in writing, for the sale of lands, on the ground of mistake, accident or inadvertence, is barred by the ten years statute of limitations; from the time the cause of action accrued; and not as in cases of fraud; where the statute runs six years from the time the fraud is discovered. Before the Code, the statute of limitations applicable to the grounds of fraud, were equally applicable to those of mistakes and accidents. What is the result of the decisions under this section? 1. (1 Q.) In cases where a court of equity has exclusive jurisdiction, the only limita tion applicable to the demand is the ten years limitation of suits in equity. 2. Where the personal estate is, by the will charged in whole or in part with the payment of debts, an action against a devisee who enters upon the land charged with the payment of the debts belongs exclusively to a court of equity. 3. The ten years limitation is applicable to an action against the estate of a deceased partner, from the time the surviving partner becomes insolvent, subsequent to the death of his deceased copartner. 4. An action brought to reach real estate, for the purpose of satisfying a debt of the testator, is an action in rem for equitable relief, to which the statute of ten years limitation after the cause of action accrued, applies. 5. An action by a pledgor to redeem stock secured by his note, is an equitable action, and must be brought within ten years from the time the note becomes due. 6. (3 Q.) The ten years statute of limitations is applicable to a claim for equitable relief by a defendant in ejectment, where he claims a reformation of his deed in accordance with the alleged facts; and it begins to run from the time the defendant has knowledge of the plaintiff's adverse claim. 7. (4 Q.) The statute of limitations begins to run at the time the plaintiff might bring his equitable action, and is charged with notice that his right is denied; a new cause of action cannot be created by a subsequent demand of specific performance. 8. (5 Q.) An action to reform a contract or instrument in writing for the sale of lands, on the ground of mistake, accident or inadvertence, is barred by the ten years statute of limitations from the time the cause of action accrued. $ 98. Actions by the people, subject to the same limitation. The limitations prescribed in this chapter shall apply to actions brought in the name of the people of this state or for their benefit, in the same manner as to actions by private parties. 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: $78. [1848.] The limitations prescribed in this title shall apply to actions brought in the name of the people of this state or for their benefit, in the same manner as to actions by private parties. CHAPTER IV. General provisions as to the time of commencing actions. SECTION 99. When action deemed to have been commenced. 100. Exception, where defendant is out of the state. 101. Exception, as to persons under disabilities. 102. Provision where person entitled, dies before the limitation expires. 104. Provision, where judgment has been reversed. 105. Time of stay of action by injunction or statutory prohibition to be deducted. 106. Disability must exist when right of action accrued. 107. Where two or more disabilities, limitation does not attach, till all removed. 108. This title not applicable to bills, &c., of corporations, or to bank notes. 109. Nor to actions against directors or stockholders of moneyed corporations or banking associations. Limitation in such cases prescribed. 110. Acknowledgement or new promise must be in writing." $99. When action deemed to have been commenced. An action is commenced as to each defendant when the summons is served on him, or on a codefendant, who is a joint contractor, or otherwise united in interest, with him. An attempt to commence an action, is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county, in which the defendants, or one of them, usually or last resided; as if a corporation be defendant, to the sheriff, or other officer of the county, in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt must be followed by the first publication of the summons, or the service thereof within sixty days. 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 1848 and 1849 ? A. As follows: $79. [1848.] An action shall not be deemed commenced, within the meaning of this title, unless it appear: 1. That the summons or other process therein was duly served upon the defendants, or one of them; or 2. That the summons was delivered, with the intent that it should be actually served, to the sheriff of the county in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. $99. [1849.] An action shall not be deemed commenced, within the meaning of this title, unless it appear: 1. That the summons or other process therein was duly served upon the defendants, or one of them; or, 2. That the summons or other process was delivered, with the intent that it should be actually served, to the sheriff or other officer of the county in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But an action shall be deemed commenced for all purposes, at the time the complaint is verified, provided that the summons or other process thereupon issued, be delivered to the sheriff or other officer, on the same or next five succeeding days, and be followed by the actual service thereof, on the defendants, or one or more of them. Questions. 3. Q. Is this section, in its provisions as to delivering the summons to the sheriff for the commencement of actions, limited solely to the defense of the statute of limitations! 4. Q. Is it a sufficient commencement of the action by a warrant under the act of 1831, to abolish imprisonment for debt, &c., to deliver the summons to the sheriff under this section? 5. Q. Is a joint codefendant who was a nonresident, and not served with process when a judgment in form was taken against all the defendants, bound by the judgment notwithstanding the statute of limitations had applied where he was served with notice of the judgment? 6. Q. Is the indorsement by the sheriff of the time of the receipt of the summons, evidence of the fact, on a question of the statute of limitations? 7. Q. Does the issuing of an order for the examination of a judgment debtor, stop the operation of the statute presuming payment of the judgment at 20 years? 8. Q. Is the delivery of a summons to the sheriff with intent to have it served, a sufficient commencement of the action, the cause of which accrued before the Code? 3. Q. Is this section in its provisions as to delivering the summons to the sheriff for the commencement of actions, limited solely to the defense of the statute of limitations? A. In Mills agt. Corbett, 8 How., 500, Special Term, June, 1853, HARRIS, J., it was decided, that this section expressly limits the operation of its provisions to the title relating to the time of commencing civil actions. The word "issued" in section 227 of the Code, should not be construed to mean the same as delivered to the sheriff" in section 99. In Wiggin agt. Orser, 5 Duer, 118, General Term, December, 1855, the COURT, and in The Farmers' Loan and Trust Co. agt. Dickson, 17 Hor., 478, Special Term, September, 1859, INGRAHAM, J., it was decided, that as a general rule, an action under the Code, is not commenced until the actual service of the summons. The only exceptions are those created by sections 99 and 135 of the Code. The first exception is confined to cases in which the statute of limitations is set up as a defense. The provision as to delivering the summons to the sheriff is limited solely to the statute of limitations. |