PART IL only rules of limitation applicable, to a civil action or special pro- chapter ceeding, 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. [New. The general language, at the commencement and conclusion of this section, will remove a source of constant doubt, as to the application of the statute to special proceedings (People v. Sup. Westchester, 12 Barb., 446), and to defences (per BACON, J., in Bartlett v. Judd, 21 N. Y., 200); and will sweep away whatever remnants may vet exist, of the antiquated doctrine, that equitable relief may be refused, upon stale demands, without reference to the statute. See Derby v. Yale, 13 Hun, 273. Subd. 2 is necessary, because the provisions of the Code of Procedure, revised in this chapter, were prospective. Subd. 3 appears to be proper, instead of rendering this chapter wholly prospective, because the amendments, made thereby, relate only to the removal of imperfections in the original statute, and the prevention of possible abuses under it. But this chapter ought not, by any possibility, to be so construed as to revive a cause of action, which is barred when it takes effect; and, to guard against a question of that kind, which might arise under some of the provisions, extending the time limited by the former statutes, sub. 4 has been inserted.] applies. 415. The periods of limitation, prescribed by this chapter, Mode of except as otherwise specially prescribed therein, must be computed periods of computing limitation. MANUAL from the time of the accruing of the right to relief by action, spe JUSTICE'S cial 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. [New; designed chiefly to regulate the application of the statute, to claims interposed in special proceedings, defences, and replies; but reaching, also, some other cases, where there is a doubt as to the time when the statute begins to run.] 192 PART II. CHAPTER V. COMMENCEMENT OF AND PARTIES TO AN ACTION. TITLE I. Commencement of an action. ARTICLE FIRST. THE SUMMONS AND ACCOMPANYING PAPERS; PERSONAL SERVICE THEREOF; Designation, by a resident, of a per whom to serve a during his effect and thereof. § 430. A resident of the State, of full age, may execute, under his hand, and acknowledge, in the manner required by law to entitle a deed to be recorded, a written designation of another resident of son upon the State, as a person upon whom to serve a summons, or any process summons or other paper for the commencement of a civil special proceeding, absence: in any court or before any officer, during the absence from the United revocation States of the person making the designation; and may file the same, with the written consent of the person so designated, executed and acknowledged in the same manner, in the office of the clerk of the county, where the person making the designation resides. The designation must specify the occupation, or other proper addition, and the residence of the person making it, and also of the person designated and it remains in force during the period specified therein, if any; or, if no period is specified for that purpose, for three years after the filing thereof. But it is revoked earlier, by the death or legal incompetency of either of the parties thereto; or by the filing of a revocation thereof, or of the consent, executed and acknowledged in like manner. The clerk must file and record such a designation, consent, or revocation; and must note, upon the record of the original designation, the filing and recording of a revocation. While the designation remains in force, as prescribed in this section, a summons, or any process or other paper for the commencement of a civil JUSTICE'S MANUAL special proceeding, against the person making it, in any court or before any officer, may be served upon the person so designated, in like manner and with like effect, as if it was served personally upon the person making the designation, notwithstanding the return of the latter to the United States. [New. The increasing frequency of protracted absences abroad, on the part of residents of the State, has made the want of any regulation, for the service of a summons or other process upon them, during their absence, a serious grievance, which this section is designed partly to remedy. Under the original law, in some cases they are liable to be proceeded against by publication; in others, the claimant is subjected to vexatious delay, for want of any means of compelling them to appear. A provision like this section, is demanded for the protection equally of the absentee and the claimant.] § 431.* Personal service of the summons upon a defendant, being a domestic corporation, must be made by delivering a copy thereof, within the State, as follows: 1. If the action is against the mayor, aldermen, and commonalty of the city of New-York, to the mayor, comptroller, or counsel to the corporation. 2. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the city lacks either of those officers, to the officer performing corresponding functions, under another name. 3. In any other case, to the president or other head of the corporation, the secretary or clerk to the corporation, the cashier, the treasurer, or a director or managing agent.(a) [Subd. 1 of this section has been taken from L. 1860, ch. 379, § 4; subd. 3 is subd. 1 of § 134 of the Code of Procedure, excluding that portion which relates only to foreign corporations; subd. 2 is new, but it is believed that the propriety of some provision of this character is evident. See § 2879.] § 432.* [Amended, 1877.] Personal service of the summons, upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the State, as follows: 1. To the president, treasurer, or secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another name. 2. To a person designated for the purpose by a writing, under the 194 seal of the corporation, and the signature of its president, vice-president, or other acting head, accompanied with the written consent of the person designated, and filed in the office of the secretary of State. The designation must specify a place, within the State, as the office or residence of the person designated; and, if it is within a city, the street, and street number, if any, or other suitable designation of the particular locality. It remains in force, until the filing in the same office of a written revocation thereof, or of the consent, executed in like manner; but the person designated may, from time to time, change the place specified as his office or residence, to some other place within the State, by a writing, executed by him, and filed in like manner. The secretary of State may require the execution of any instrument, specified in this section, to be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation so filed, accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. 3. If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation, within the State.(^) [This section is a substitute for the previous legislation respecting the service of a summons upon foreign corporations. The provisions from which it is framed, and which it supersedes, are: Code of Procedure, § 134, subd. 1; and Laws of 1855, ch. 279, § 1-3 (3 Edm., 685). Held, under these statutes, that service upon an officer temporarily here is valid, only where the foreign corporation has property here, or the cause of action arose here. Hiller v. B. & M. R. R. Co., 70 N. Y., 223. PART II TITLE II. Parties to an action. be joined as plaintiffs. § 446. All persons having an interest in the subject of the action, Who may and in obtaining the judgment demanded, may be joined as plain. tiffs, except as otherwise expressly prescribed in this act.(") [Co. Proc., § 117.] (a) Applied to justices' courts by § 2879, page 12. 195 |