CHAPTER III. CIVIL JURISDICTION OF THE PRINCIPAL COURTS TITLE III. The superior city courts. PART II. ARTICLE THIRD. PROVISIONS EXCLUSIVELY APPLICABLE TO THE SUPERIOR COURT OF BUFFALO, 294. The court also possesses exclusive jurisdiction and power Exclusive as follows: 1. Where an action, commenced in a justice's court in the city of Buffalo, has been discontinued upon the delivery of an undertaking, because the title to real property came in question, it possesses exclusive jurisdiction of an action for the same cause, brought pursuant to the undertaking. 2. It has exclusive power to remit a fine imposed or a recognizance estreated by it. [Subd. 1 has been taken from L. 1854, ch. 96, § 12; subd. 2, from L. 1850, ch. 138, § 4. The provision of Co. Proc., § 352, as amended in 1862 and 1863, whereby an appeal from a judgment of a justice's court in Buffalo must be taken to the superior court, is in § 3045. One of the learned justices of that court suggested to the commissioners, with the approbation of his brethren, the entire omission of that provision, so that a justice's judgment in Buffalo shall be reviewed by the county court of Erie county, but the commissioners did not think it proper for them to propose a change of that character.]() 171 powers in certain cases. JUSTICE'S Fines imposed by the peace; how re mitted. TITLE V. The county courts. § 353. Where a person has been fined by a court of special Justices of sessions, or by a justice of the peace, upon a conviction for an offence, and has been committed to jail for non-payment of the fine, the county court of the county may make an order, remitting the fine, wholly or partly, and discharging him from his imprisonment. The power conferred by this section must be exercised in the manner prescribed, and subject to the provisions contained, in the last three sections. [2 R. S., 486, Part 3, ch. 8, tit. 6, § 42 (3 R. S., 5th ed., 788; 2 Edm., 508).] 172 CHAPTER IV. LIMITATION OF THE TIME OF ENFORCING A CIVIL PART II. TITLE II. Actions other than for the recovery of real property. satisfac judgment $376. [Amended, 1877.] A final judgment or decree for a sum When of money, or directing the payment of a sum of money, heretofore tion of rendered in a surrogate's court of the State, or heretofore or here- presumed. after 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 son to be charged thereby. per [This section has been substituted for the first subdivision of the following section of the Code of Procedure: "Sec. 90. Within twenty years: 1. An action upon a judgment or decree of any court in the United States, or of any state or territory within the United States. 2. An action upon a sealed instrument." The substitute has been framed upon R. S., Part 3, ch. 4, tit. 2, § 47 (2 R. S., 1st ed., 301; 2 R. S., 3d ed., 398; 3 R. S., 5th ed., 590), which has been adapted to the existing laws regulating the practice and proceedings of the courts. It will be noticed that this section is limited to courts of record, in which expression, is now included a surrogate's court of the State. See L. 1877, ch. 416, § 1, subd. 1; and § 382, subd. 7, post, as amended by the same chapter, so as not to conflict with this section (L. 1877, ch. 416, § 1, subd. 44). It has been held, under the Code of Procedure, that the limitation of twenty years extends to justices' judgments. MANUAL. JUSTICE'S Delavan v. Florence, 9 Abb. Pr., 277, note; Conger v. Vandewater, 1 Abb. Pr., N. S., 126. This is contrary to all our legal traditions, and it is believed, to the intent of the legislature; and accordingly a different provision has been made in § 382, subd. 5. But it seems eminently proper that the decrees of surrogates' courts of the State should be subjected to this long limitation. The provision of the R. S., whereby proof of payment, or of acknowledgment, is restricted to proceedings against the original party, or his representatives, has been extended to every person who makes the payment or acknowledgment. The propriety of this change will be apparent, without discussion. A provision has also been added, requiring the acknowledgment to be in writing, and signed by the party, in accordance with § 395, post.] Effect of return of 377. If the proof of payment, under the last section, consists execution 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. How presumption raised. Other [The necessity of this provision has been suggested by the case of Henderson v. Cairns, 14 Barb., 15. The language of the court, in that case, seems to lead to the inference, that a sheriff's return of partial satisfaction would be evidence of payment, within the provisions of the R. S., and. if so, it would doubtless be generally conclusive. The facility with which a plaintiff may procure such a return, in order to defeat the statute, even without collusion on the part of the sheriff, seems to render it proper to provide, as in this section, against the possibility of abuse.] § 378. 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 the note to § 376, ante.] § 380. The following actions must be commenced within the limitation. following periods, after the cause of action has accrued. periods of Within twenty years. [See Co. Proc., § 74, first half of the first sentence; and id., § 89.] 381. [Amended, 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. [The commencement of the section consists of Co. Proc., § 90, subd. 2. Under the R. S., the corresponding limitation was a presumption of payment, and applied only to an action at law upon a sealed instrument for the payment of money, 2 R. S., 301, §§ 48 and 50 (p. 398, 3d ed.); and the original report of the Code of Procedure preserved the distinction, with respect to the character of the instrument. But the legislature made the rule general, in both respects; and so it has stood since 1848, although the provision apparently includes certain actions, especially of an equitable character, which would otherwise be subject to shorter limitations. The concluding sentence is new. The remedy upon these covenants ought to be preserved until time bars an action to enforce the title or incumbrance, against which they were intended to operate. A stranger, holding an outstanding title, might have twenty years after the covenant, in which to bring ejectment; yet, as the covenant is broken as soon as it is made, the action upon it would be barred in the same twenty years, and so the grantee would lose his land, and have no remedy upon the covenant.] § 382. [Amended, 1877, ch. 416 and 422.] 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 injury; except in a case where a different period is expressly prescribed 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, 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. 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 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. PART II. Within six years. |