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oxpress or implied; except a judgment or sealed instra. ment.
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 prop erty, or a personal injury; except in a case where å dit. ferent 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 cognizablo by the court of chancery. The cause of action, in such a case, is not deemed to have accrued, until the dis. covery, 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. [Amended, 1894.) 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. In effect, as amended, April 17, 1894 ; Laws 1894, ch. 307. $ 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 lia bility incurred by him, by doing an act in his official capacity, or by the omission of an official duty; exceps en escape.
3. An action upon a statute, for a penalty or for. feiture, where the action is given to the person anger
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 re ceiver, 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)
6. An action to recover damages for a personal injury, resulting from negligence. See Laws 1836, ch. 272.
Substitute for Co. Proc., & 92. (1) See post, $ 385; Elliot v. Cronk, 13 Wend. 35; Davy t. Field, I Abb. Ct. App. 490 ; s. c., 2 Keyes, 608 Peck v. Hurlburt, 46 Baro. 559. (2) Merchants' Bank v. Bliss, 35 N. Y. 42; Wilcox o. Fitch, 20 Johns. 472; Langdon v. Fire Department, 11 Wend. 234; Fowler v. Van Surdani, i Den. 557; Nimmons v. Tappan, 9 Sw. 652. (3) Hartslander v. Thompson, 5 Huu, 348; Carroll v. Car roll, 11 Barb. 293 ; McCartee v. Camel, i Barb. Ch. 455; Siaith v. Rem. Ington, 42 Barb. 75.
§ 384. Within two years. ---- Within two years :
1. An action to recover damages for libel, slander, ag. ault, battery, or false imprisonment.
2. An action upon a statute, for a forfeiture or peralty to the people of the State. See post $ 1902.
Co. Proc., $ 93, am'd. Priest v. Hudson R. R. R. Co., 10 Abb. N. 6. 60; s. c., 40 How. 456. & 385. Within one year.
Within one year: i. 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 civii mandate.(2)
Substitute for Co. Proc., &94. (1) Morris v. Van Voast, 19 Wond. 23; Van Tassel v. Van Tassel, 31 Barb. 439; Dennison v. Plumb, 19 11. 89; Peck v. Hurlburt, 46 id. 659; Cummings v. Brown, 43 N. Y. 614: Rupervisors 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 par. ties, 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. Perrineo. Hotchkiss, 2 T. & C 370; afirmed 59 N. Y. 049; Ross v. Ross, 6 Hun, 80; Helms o. Otis, 5 Lans. 137 ; Smith v. Velle, 60 N. Y. 106; Albro v. Figuera, id. 630; Green o. Disbrow, 7 Lans. 381; Smith .. Byan, 39 N. Y. Supr. 489; Peck o. U. S., etc., Mall Ship Co., 3 Bosw. 226; Green o. 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 prosecate 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., 896.
$ 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 ton Fears after the cause of action accrues. Id., 197, and Everitt o. Everitt, 41 Barb. 385: Hubbell v. Sibley, 60 N. 1. 468; Micer v. Beekman, 14 Abb. N. S. l; Peters v. Delaplaine, 49 N. 1. 362;' McCotter v. Lawrence, 4 Hun, 107; Tait r. Wright, 2 T. & C. 614 Hubbell o. Medbury, 53 N. Y. 683; McTeague v. Coult r, 38 N. Y. Supr. 200; Ballsbury v. Mores, 7 Laps. 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 peo ple 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; Oarpentier 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. Hathawa. 13 id. 214; Toulandon v. Lachenmeyer, 6 Abb. N. S. 215.
§ 391. [Amended, 1877.] When person liable, etom 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 & part of the time limited for the commencement of an action therefor, against his executor or administrator. New. See Christophers o. Garr, 6 N. Y. 61.
$ 392. (Amended, 1877.] Cause of action accraing between the death of a testator or intestate, and the grant of letters. -- For the purpose of computing tho time, within which an action must be commenced in a court of the State, by an executor or administrator, te 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 sach 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, 63 8. I. *; Backla o. Ford, 6 Bara We; soovi . Scovil, * Id. 317.
$ 393. No limitation of action on bank notes, eto 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 stock holder of a moneyed corporar 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, aro'd.
$ 395. Acknowledgment or new promise must be in writing. — An acknowledgment(1) or promise,(2) COD tained 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. 622; Loomis v. Decker, i Daly, 180; McNamee v. Tenny, 41 Barb. 495; Stuart v. Foster, 18 Abb. 305; Con mercial Ins. Co. v. Brett, 44 Barb. 12; Rowe v. Thompson, 16 Ab! 377. (2) Chace v. Higgins, 1 T. & C. 229; Halsey v. Reld, 4 Hun, 777; Lansing o. Blair, 43 N. Y. 48; Wakeman v. Sherman, 9 id. 86; Bloor good v. Bruen, 8 id. 362. (3) Smith v. Velie, 60 N. Y. 106; Harper th. Fairley, 53 id. 442; Miller v. Talcott, 54 1d. 114; First National Bank a Ballon, 49 Id. 155; Pitts v. Hunt, 6 Lans, 146; Graham v. Selover, on Barb. 313; Rich v. Niagara Bank, 3 Hun, 481; Smith o. Ryan, 39 N Y. Supr. 489; Townsend v. Ingersoll, 43 How. 276; 8. C., 12 Abb. N. 8. 364; Heath o. Grenell, 6! Barb. 190; Arnold v. Downing, 11 d. 054 Berrian o. Mayor, 4 Rob. 538; Van Keuren v. Parmelee, > N. Y. 6233 Barger v. Durvin, 22 Barb. 68; Payne v. Slate, 39 Barb. 634; Bruce v. Tilson, 28 N. Y. 194.
8 396. Exceptions, as to persons under disabilitiek -- 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 luga than for life;
The time of such a disability is not a part of the time