grieved, or to that person and the people of the State, except where the statute imposing it prescribes a differ ent 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. See Laws 1886, ch. 272.

Substitute for Co. Proc., 92. (1) See post, 385; Elliot v. 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 . Fitch, 20 Johns. 472; Langdon v. Fire Department, 17 Wend. 234; Fowler v. Van Surdam, 1 Den. 557; Nimmons v. Tappan, 2 Sw. 652. (3) Hartslander v. Thompson, 5 Hun, 348; Carroll v. Car roll, 11 Barb. 293; McCartee v. Camel, 1 Barb. Ch. 455; Siaith 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. See post § 1902.

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

§ 385. Within one year. Within one year:

I. An action against a sheriff or coroner, upon a lia bility 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)

Substitute for Co. Proc., 94. (1) Morris v. Van Voast, 19 Wend. 283; Van Tassel v. Van Tassel, 31 Barb. 439; Dennison v. Plumb, 12 11. 89: Peck v. Hurlburt, 46 id. 559; Cummings v. Brown, 43 N. Y. 514: Supervisors v. 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 on either side.

Co. Proc., 95. Perrinev. Hotchkiss, 2 T. & C 370; affirmed 59 N. Y. 649; Ross v. Ross, 6 Hun, 80; Helms v. Otis, 5 Lans. 137; Smith. Velle, 60 N. Y. 106; Albro v. Figuera, id. 630; Green v. Disbrow, 7 Lans. 381; Smith . Byan, 39 N. Y. Supr. 489; Peck v. U. S., etc., Mail Ship Co., Bosw. 226; Green v. 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., 96.

§ 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. I. 468; Mirer v. Beekman, 14 Abb. N. S. 1; Peters v. Delaplaine, 49 N. Y. 362; McCotter v. Lawrence, 4 Hun, 107; Tatt v. Wright, 2 T. & Ć. 614; Hubbell v. Medbury, 53 N. Y. 683: McTeague v. Coult r, 38 N. Y. Supr. 208; 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.

ld., § 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 possession of real property within the State, accrues against 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 resi dence, 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.

*See post, & 401.

2. Where, before the expiration of the time so lim. ited, 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.

New. Mayer v. Friedman, 7 Hun, 218; Hall v. Robbins, 4 Lans. 463; Carpentier v. Minturn, 6 id. 56; Rathbun v. Northern Railway Co., 50 N. Y. 656. See contra, Ruggles v. Keeler, 3 Johns. 263; Olcott v. Tioga B. R. Co., 20 N. Y. 224; Gans v. Frank, 36 Barb. 320; Power v. Hathaway, 43 id. 214; Toulandon v. Lachenmeyer, 6 Abb. N. S. 215.

§ 391. [Amended, 1877.] When person liable, etc. dies without the State. 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. New. See Christophers v. Garr, 6 N. Y. 61.

§ 392. [Amended, 1877.] Cause of action accruing between the death of a testator or intestate, and the grant of letters. For the purpose of computing the time, within which an action must be commenced in 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 cessation 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.

Now. Sanford v. Sanford, 62 N. Y. 553; Bucklin ». Ford, 5 Barb. 308; Soovile. Soovil, 45 id. $17.

§ 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.

Co. Proc., 108.

§394. [Amended, 1877.] Action against directors, etc., of banks. This chapter does not affect an action against a director or stockholder of a moneyed corpora tion, or banking association, to recover a penalty or for feiture imposed, or to enforce a liability created by law; but such an action must be brought within three years after the cause of action has accrued.

Id., 109, am'd.

$395. Acknowledgment or new promise must be in writing. An acknowledgment(1) or promise,(2) 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.(3)

Id., 110. (1) Hope v. Bogart, 1 Hilt. 543; Turner v. Martin, 4 Rob. 661; Berrian v. Mayor, id. 533; Loomis v. Decker, 1 Daly, 180; McNamee v. Tenny, 41 Barb. 495; Stuart v. Foster, 18 Abb. 305; Com mercial Ins. Co. v. Brett, 44 Barb. 489; Rowe v. Thompson, 15 Abl 377. (2) Chace v. Higgins, 1 T. & C. 229; Halsey v. Reld, 4 Hun, 777: Lansing v. Blair, 43 N. Y. 48; Wakeman v. Sherman, 9 id. 86; Bloodgood v. Bruen, 8 id. 362. (3) Smith v. Velle, 60 N. Y. 106; Harper 1 Fairley, 53 1d. 442; Miller v. Talcott, 54 id. 114; First National Bank Ballou, 49 id. 155; Pitts v. Hunt, 6 Lans. 146; Graham v. Selover, Barb. 313; Rich v. Niagara Bank, 3 Hun, 481; Smith v. Ryan, 39 N Y. Supr. 489; Townsend v. Ingersoll, 43 How. 276; 8. c., 12 Abb. N 8. 364; Heath v. Grenell, 6! Barb. 190; Arnold v. Downing, 11 id. 554, Berrian e. Mayor, 4 Rob. 538; Van Keuren v. Parmelee, 2 N. Y. 523 Barger. Durvin, 22 Barb. 68; Payne v. Slate, 39 Barb. 634; Bruce v. Tilson, 25 N. Y. 194.

§ 396. Exceptions, as to persons under disabilitie -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,(1)

2. Insane; or,(2)

3. Imprisoned on a criminal charge, or in execution apon 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.

Co. Proc., 101. (1) Phelan v. Douglass, 11 How. 193. (2) Sanford . Sanford, 4 T. & C. 686; s. c., 2 Hun, 94; aff'd, 62 N. Y. 553.

§ 397. Defence or counterclaim. - A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim.

New.

TITLE III.

General provisions.

A. 398. When action deemed to be commenced.

399. Attempt to commence action in a court of record.

400. Id.; in a court not of record.

401. Exception, when defendant is without the State.

402. Id.; when a person entitled, etc., dies before limitation es pires.

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 de

ducted.

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. [Amended, 1877.] When action deemed to be commenced. An action is commenced against a defendant, within the meaning of any provision of this act, which limits the time for commencing an action, when the summons is served on him; or on a co-defendant who is a joint contractor, or otherwise united in interest with him.

Co. Proc., 99, am'd. Hultslander v. Thompson, 5 Hun, 348; Davis, Dume, 18 Abb. 360; Knight v. Beach, 7 Abb. N. S. 241; Kerr v. Mount 28 N. Y. 659; Bruen v. Bokee, 4 Den. 56; Bogert v. Vermilyea, 10 N. Y. 47 Denny v. Smith, 18 id. 567.