*§ 401. [Am'd, 1888, 1896.] Exception, when defendant is without the State.

If, when the cause of action accrues 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 a person, he departs from 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. Co. Proc., § 100, am'd; L. 1888, ch. 498; L. 1896, ch. 665. In effect Sept. 1, 1896. See ante, § 390.

§ 402. Id.; when a person entitled, etc., dies before limitation expires.

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.

Id., § 102, am'd.

§ 403. [Am'd, 1891, 1896.] Id.; when a person liable, dies within the State.

If

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 provisions 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. letters testamentary or letters of administration upon his estate are not issued, within this 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. The time during which an action is pending in a court of record between a person or persons and an executor or administrator, wherein the person or persons claim to recover from the executor or administrator any money or other property claimed by said executor or administrator to belong to the estate of the decedent, or is embraced in the inventory of the assets of said decedent's estate, is not a part of the time limited for the commencement of an action against an executor or administrator, for a claim against the estate of the decedent until the final determination of the action brought to recover said or other property claimed by said executor or administrator to belong to said decedent's estate:

1. Where the claim against the estate of the decedent is liquidated by the recovery of a judgment thereon against an executor or administrator in an action in a court of record or under section twenty-seven hundred and eighteen of this code, after trial on the merits.

See ante, § 390.

2. Where a legatee brings an action, or institutes a proceeding, against an executor or administrator with the will annexed, to enforce the payment of a legacy.

L. 1891, ch. 70; L. 1896, ch. 897. In effect May 26, 1896.

§ 404. In suits by aliens, time of disability in case of war to be deducted.

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.

Co. Proc., § 103, am'd.

§ 405.

Provision where judgment has been reversed. 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 in 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 representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.

Id., § 104.

§ 406. Stay by injunction, etc., to be deducted. Where the commencement of an action has been stayed by injunction, or other order of a court or judge, or 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. Id., § 105, am'd. See § 1923.

§ 407. Certain actions by a principal, for misconduct of an agent, etc.

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. Disability must exist when right accrues, A person cannot avail himself of a disability, unless it existed when his right of action or of entry accrued.

Co. Proc., 106, am'd.

§ 409. If several disabilities, no limitation until all removed.

Where two or more disabilities co-exist, when the right of action or of entry accrues, the limitation does not attach, until all are removed.

Id., 107, am'd.

§ 410. Provision when the action cannot be maintained without a demand.

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 computei 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. 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 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. Provision in case of submission to arbitration. 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 injunetion, 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. Provision when action is discontinued, etc., after answer.

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 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, or to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him.

§ 413. How objection taken, under this chapter. 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.

Co. Proc., part of § 74.

§ 414. Cases to which this chapter applies.

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:

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, 1848. 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 applicable 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. Mode of computing periods of limitation.

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.

98

CHAPTER V.

Commencement of and Parties to an Action.

TITLE 1.-Commencement of an Action.

TITLE II. Parties to an Action.

TITLE I.

Commencement of an action.

Article 1. The summons and accompanying papers; personal service thereof; appearance of the defendant.

2. Substitutes for personal service in special cases.

ARTICLE FIRST.

The summons and accompanying papers; personal service thereof, appearance of the defendant.

Sec. 416. Action to be commenced by summons; time when court acquires jurisdiction.

417. Requisites of summons.

418. Form of summons.

419. Service of copy complaint or notice with summons; consequence of

failure.

420. Cases where such service must be made.

421. Appearance of defendant.

422. When defendant must answer before time to appear expires.

423. Notice of no personal claim; effect of service thereof.

424. Effect of voluntary appearance.

425. Summons; when and by whom served. Sheriff's duty.

426. How personal service of summons made upon a natural person.
427, 428. Id.; in certain cases of infancy, or lunacy, etc., not judicially
declared.

429. Id.; when delivery of copy te lunatic dispensed with.

430. Designation, by a resident, of a person upon whom to serve a summons during his absence; effect and revocation thereof.

431. How personal service of summons made upon a domestic corporation.
432. Id.: upon a foreign corporation.

433. Service of process, etc., to commence a special proceeding.
434. Proof of service of summons, etc.; how made.

416. Action to be commenced by summons; time when court acquires jurisdiction.

A civil action is commenced by the service of a 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.

Co. Proc., part of § 127, and id., § 139.

§ 417. [Am'd, 1879.] Requisites of summons.

The summons must contain the title of the action, specifying the court in which the action is brought, the names of the parties to the action, and, if it is brought in the supreme court, the pame 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