SECTION 390. Action against a non-resident, upon a demand barred by the law of his residence. 391. When person liable, etc., dies without the State. 392. Cause of action accruing between the death of a testator or intestate, and the grant of letters. 393. No limitation of action on bank notes, etc. 394. Action against directors, etc., of banks. 395. Acknowledgment or new promise must be in writing. 396. Exceptions, as to persons under disabilities. 397. Defence or counter-claim. $376. When satisfaction of judgment presumed. A final judgment or decree for a sum of money, or directing the payment of a sum of money, heretofore rendered in a surrogate's court of the State, or heretofore or hereafter rendered, in a court of record within the United States, or elsewhere, or hereafter docketed pursuant to the provisions of section thirty hundred and seventeen of this act, is presumed to be paid and satisfied, after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive, except as against a person who, within twenty years from that time, makes a payment or acknowledges an indebtedness of some part of the amount recovered by the judgment or decree, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing, and signed by the person to be charged thereby. [AM'D BY CH. 307 or 1894. Took effect April 17, 1894.] § 377. Effect of return of execution. If the proof of payment, under the last section, consists of the return of an execution partly satisfied, the adverse party may show, in full avoidance of the effect thereof, that the alleged partial satisfaction did not proceed from a payment made, or a sale of property claimed, by him, or by a person whom he represents. $378. How presumption raised. A person may avail himself of the presumption created by the last section but one, under an allegation that the action was not commenced, or that the proceeding was not taken, within the time therein limited. § 379. Limitation of action to redeem from a mortgage. An action to redeem real property from a mortgage, with or without an account of rents and profits, may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises, for twenty years after the breach of a condition of the mortgage, or the non-fulfillment of a covenant therein contained. § 380. Other periods of limitation. The following actions must be commenced within the following periods, after the cause of action has accrued. § 381. Within twenty years. [AMENDED BY CH. 416 OF 1877.] Within twenty years: An action upon a sealed instrument. But where the action is brought for breach of a covenant of seizin, or against incumbrances, the cause of action is for the purposes of this section only, deemed to have accrued upon an eviction, and not before. $382. Within six years. [AMENDED BY CH. 416 OF 1877 AND BY CH. 422 OF 1877.] Within six years: 1. An action upon a contract obligation or liability, express or implied; except a judgment or sealed instrument. 2. An action to recover upon a liability created by statute; except a penalty or forfeiture. 3. An action to recover damages for an injury to property, or a personal Tit. 2, Ch 4 mjury; except in a case where a different period is expressly prescrit✅ in this chapter. 4. An action to recover a chattel. 5. An action to procure a judgment, other than for a sum of money. on the ground of fraud, in a case which, on the thirty-first day of December, eighteen hundred and forty-six, was cognizable by the court of chancery. The cause of action, in such a case, is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. 6. An action to establish a will. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts upon which its validity depends. 7. An action upon a judgment or decree, rendered in a court not of record, except where a transcript shall be filed, pursuant to section thirty hundred and seventeen of this act, and, also, except a decree heretofore rendered in a surrogate's court of the State. The cause of action, in such a case, is deemed to have accrued when final judgment was rendered. [AM'D BY CH. 307 OF 1894. Took effect April 17, 1894.] § 383. Within three years. [AMENDED BY CH. 416 OF 1877.] Within three years: 1. An action against a sheriff, coroner, constable, or other officer, for the non-payment of money collected upon an execution. 2. An action against a constable, upon any other liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except an escape. 3. An action upon a statute, for a penalty or forfeiture, where the action is given to the person aggrieved, or to that person and the people of the State; except where the statute imposing it prescribes a different limitation. 4. An action against an executor, administrator, or receiver, or against the trustee of an insolvent debtor, appointed, as prescribed by law, in a special proceeding instituted in a court or before a judge, brought to recover a chattel, or damages for taking, detaining, or injuring personal property by the defendant, or the person whom he represents. 5. An action to recover damages for a personal injury, resulting from negligence. § 384. Within two years. Within two years: 1. An action to recover damages for libel, slander, assault, battery, seduction, criminal conversation, false imprisonment, malicious prosecution or malpractice. [SUBD. 1AM'D BY CH. 117, L. 1900. In effect Sept. 1, 1900. 2. An action upon a statute, for a forfeiture or penalty to the people of the state. [AMENDED BY CH. 335 OF 1896. In effect April 20, 1896.] § 385. Within one year. Within one year: 1. An action against a sheriff or coroner, upon a liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except the non-payment of money collected upon an execution. 2. An action against any other officer, for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate. In an § 386. When cause of action accrues on a current account. action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item, proved in the account on either side. § 387. Action for penalty, etc., by any person who will sue. An action upon a statute for a penalty or forfeiture, given wholly or partly to any person who will prosecute for the same, must be commenced within one year after the commission of the offence; and if the action is not commenced within the year by a private person, it may be commenced within two years thereafter, in behalf of the people of the State, by the Attorney-General, or the district-attorney of the county where the offence was committed. $388. Actions not before provided for. An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues. $389. Actions by the people subject to the same limitations. The limitations, prescribed in this title, apply alike to actions brought in the name of the people of the State, or for their benefit, and to actions by private persons. $390. Action against a non-resident, upon a demand barred by the law of his residence. Where a cause of action, which does not involve the title to or possession of real property within the State, accrues against a person, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time limited, by the laws of his residence, for bringing a like action, except by a resident of the State, and in one of the following cases: 1. Where the cause of action originally accrued in favor of a resident of the State. 2. Where, before the expiration of the time so limited, the person, in whose favor it originally accrued, was or became a resident of the State; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State. § 391. When person liable, etc., dies without the State. [AMENDED BY CH. 416 OF 1877.] If a person, against whom a cause of action exists, dies without the State, the time which elapses between his death, and the expiration of eighteen months after the issuing, within the State, of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator. § 392. Cause of action accruing between the death of a testator or intestate, and the grant of letters. [AMENDED BY CH. 416 of 1877.] For the purpose of computing the time, within which an action must be commenced in a court of the State, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining or injuring personal property within the same period; the letters are deemed to have been issued within six years after the death of the testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane, or imprisoned on a criminal charge, may, within five years after the essation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. $393. No limitation of action on bank notes, etc. This chapter does not affect an action to enforce the payment of a bill, note, or other evidence of debt, issued by a moneyed corporation, or issued or put in circulation as money. § 391. Action against directors, etc., of banks.-This chapter does not affect an action against a director or stockholder of a moneyed corporation, or banking association. to recover a penalty or forfeiture imposed, or to enforce a liability created by the common law or by statute; but such an action must be brought within three years after the cause of action has accrued. [AM'D BY CH. 281 OF 1897. In effect Sept. 1, 1897.] § 395. Acknowledgment or new promise must be in writing. An acknowledgment or promise, contained in a writing signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest. $396. Exceptions as to persons under disabilities. If a person, entitled to maintain an action specified 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. Defence or counter-claim. A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counter-claim. TITLE III. General provisions. SECTION 398. When action deemed to be commenced. 399. Attempt to commence action in a court of record. 401. Exception, when defendant is without the State. 402. Id.; when a person entitled, etc., dies before limitation expires. 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 has been reversed. 406. Stay by injunction, etc., to be deducted. 407. Certain actions by a principal, for misconduct of an agent, etc. 408. Disability must exist when right accrues. 409. If several disabilities, no limitation until all removed. 410. Provision when the action cannot be maintained without a demand. 411. Provision in case of submission to arbitration. 412. Provision when action is discontinued, etc., after answer. 413. How objection taken, under this chapter. 414. Cases to which this chapter applies. 415. Mode of computing periods of limitation. § 398. When action deemed to be commenced. [AMENDED BY CH. 416 OF 1877.] An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing on action, when the summons is served on him; or, on a co-defendant whe is a joint contractor, or otherwise united in interest with him. $399. Attempt to commence action in a court of record. An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against 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 of 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 summons 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. Id. ; in a court not of record. 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. 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 430 or in subdivision 2 of section 432 of this act remains in force. 2. Nothing in this act contained shall revive any cause of action barred by the statute, as it cristed prior to the passage of this act. [AM'D BY CH. 665 OF 1896. In effect Sept. 1, 1896.] § 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. $403. Exception when a person liable, et cetera, dies within the state. The term of eighteen months after the death, within the 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 399 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. 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 ezer stor 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` and decadent'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 Jual determination of the action brought to recover said or other property claimed by said ezerator 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 judg met thereon against an executor or administrator in an action in a court of record or under tion 2718 of this Code, after trial on the merits. 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. [AM'D BY CH. 897 OF 1896. In effect May 26, 1896.] 79 |