TITLE II.

Actions other than for the recovery of real property.

SEC. 376. When satisfaction of judgment presumed.

377. Effect of return of execution.

378. How presumption raised.

379. Limitation of action to redeem from a mortgage.
380. Other periods of limitation.
381. Within twenty years.

352. Within six years.

383. Within three years.

384. Within two years.

385. Within one year.

386. When cause of action accrues on a current account.

387. Action for penalty, etc., by any person who will sue.

388. Actions not before provided for.

39. Actions by the people subject to the same limitations.

390. Actions 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 counterclaim.

§ 376. [Amended, 1877.] 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, 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.

Substitute for 190, Co. Proc., framed from 2 R S., 301, 47. Henderson v. Cairs, 14 Barb. 15; Waddell v. Elmendorf, 10 N, Y. 170; Delavan v. Flo rence, 9 Abb. 277; Johnson v. Albany, etc., R. R. Co., 54 N. Y. 416; Merritt v. Sawyer, 6 T. & C. 160; Miller v. Brenham, 7 Hun, 330.

377. Effect of return of execution. If the proof of payment, under the last section, consists of the re

turn 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.

New. Henderson v. Cairns, 14 Barb. 15.

§ 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.

See 413, post, and Fisher v. Mayor, 6 T. & C. 100; s. c., 3 Hun, 653.

§ 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-fulfilment of a covenant therein contained.

New. Supersedes Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, id. 468. See Moore v. Cable, 1 Johns. Ch. 385; Demarest v. Wynkoop, 3 id. 129; Slee v. Manhattan Co., 1 Paige, 48.

§ 380. Other periods of limitation.—The following actions must be commenced within the following periods, after the cause of action has accrued.

Co. Proc., part of § 74, and § 89.

381. [Amended, 1877.] Within twenty years.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.

Id., part of 90. Peters v. Delaplaine, 49 N. Y. 362; McCotter v. Lawence, 4 Hun, 107; Taft v. Wright, 2 T. & C. 614; Peck v. Schenck, 3 Hun, 673.

§382. [Amended, 1877, ch. 416 and 422.] Within six years.- Within six years:

1. An action upon a contract obligation or liability,

express or implied; except a judgment or sealed instrument.(1)

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 injury; except in a case where a different period is expressly prescribed in this chapter.(2) 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, 1846, 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.(3)

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 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.(4)

See Co. Proc., 91. (1) Woodruff v. Moore, 8 Barb. 171; Davis v. Gorton, 16 N. Y. 255; Borst v. Corey, 15 id. 505; Rider v. Union Rubber Co., 5 Bosw. 86; Smith v. Velle, 60 N. Y. 106; Albro v. Figuera, id. 630; Sands v. Lilienthal, 46 id. 541; Jones v. Barlow, 62 1d. 202. (2) Kelsey v. Griswold, 6 Barb. 436; Bruce v. Tilson, 25 N. Y. 194; Priest v. Hudson River R. R. Co., 10 Abb. N. S. 60; Roberts v. Berdell, 15 ld. 177. (3) Taft v. Wright, 47 How. 1; Gates v. Andrews, 37 N. Y. 657; Prindier. Beveridge, 7 Lans. 225; Erickson v. Quinn, 47 N. Y. 410. (4) See Delavan v. Florence, 9 Abb. 277; Conger v. Vandewater, 1 Abb. N. S.

126.

$383. [Amended, 1877.] Within three years. Within three years:

1. An action against a sheriff, coroner, constable, or other officer, for the non-payment of money collected upon an execution.(1)

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 for feiture, where the action is given to the person ag

grieved, or to that person and the people of the State; except where the statute imposing it prescribes a different limitation.(2)

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. (3)

5. An action to recover damages for a personal injury, resulting from negligence.

Substitute for Co. Proc., 92. (1) See post, 385; Elliot . Cronk, 13 Wend. 35; Davy v. Field, 1 Abb. Ct. App. 490; s. c., 2 Keyes, 608 Peck v. Hurlburt, 46 Barb. 559. (2) Merchants' Bank v. Bliss, 35 N. Y. 412; Wilcox v. Fitch, 20 Johns. 472; Langdon v. Fire Department, 17 Wend. 234; Fowler . Van Surdam, 1 Den. 557; Nimmons . Tappan, 2 Sw. 652. (3) Hartslander v. Thompson, 5 Hun, 348: Carroll v. Carroll, 11 Barb. 293; McCartee v. Camel, 1 Barb. Ch. 455: Smith v. Remington, 42 Barb. 75.

$384. Within two years. Within two years:

1. An action to recover damages for libel, slander, assault, battery, or false imprisonment.

2. An action upon a statute, for a forfeiture or penalty to the people of the State.

Co. Proc., 93, am'd. Priest v. Hudson R. R. R. Co., 10 Abb. N. 8. 60; s. c., 40 How. 456.

§ 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 (1)

2. An action against any other officer, for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate.(2)

94.

Substitute for Co. Proc., (1) Morris v. Van Voast, 19 Wend. 283; Van Tassel v. Van Tassel, 31 Barb. 439; Dennison v. Plumb, 18 id. 89: Peck v. Hurlburt, 46 id. 559; Cummings v. Brown, 43 N. Y. 514; Supervisors . Walter, 4 Hun, 87 People v. Schuyler, 4 N. Y. 173; Bowne v. O'Brien, 5 Daly, 474. (2) Roe v. Beakes, 7 Wend. 459.

§ 386. When cause of action accrues on a current account. In an 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 or either side.

Co. Proc., 95. Perriner. Hotchkiss, 2 T. & C 370; affirmed 59 N. Y. 649; Boss v. Ross, 6 Hun, 80; Helms v. Otis, 5 Lans. 137; Smith e. Velie, 60 N. Y. 106; Albro . Figuera, id. 630; Green v. Disbrow, 7 Lans. 381; Smith . Ryan, 39 N. Y. Supr. 489; Peck v. U. S., etc., Mail Ship Co., 5 Bosw. 226; Green . Ames, 14 N. Y. 225.

$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.

Id., 196.

§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.

Id., 97, and Everitt . Everitt, 41 Barb. 385; Hubbell v. Sibley, 50 N. Y. 468; Miner v. Beekman, 14 Abb. N. S. 1; Peters v. Delaplaine, 49 N. Y. 362: McCotter v. Lawrence, 4 Hun, 107; Taft v. Wright, 2 T. & C. 614; Hubbell . Medbury, 53 N. Y. 683; McTeague v. Coult r, 38 N. Y. Supr. Bis; Salisbury v. Morss, 7 Lans. 359; Depew v. Dewey, 2 T. & C. 515.

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.

Id., 98.

§ 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 posses sion 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.