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limited in this title for commencing the action ; ex copt that the time go 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 o. Douglasa, 11 How. 193. (2) Ban ford v. Sanford, 4 T. & C. 680; 8. c., 2 Hua, 94 ; Alf'd, 62 N. Y. 453.
$ 397. Defence or counterclaim.. A cause of action, opon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed me a defence or counterclaim. Xew.
399. Attempt to commence action in a court of record.
§ 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-defend. ant who is a joint contractor, or otherwise united in interest with him.
Co. Proc., & 99, am'd. Hultslander v. Thompson, 5 Han, 348; Davtay, Dume, 18 Abb. 360; Knight v. Beach, 7 Abb. N. S. 241; Wert v. Mount 28 N. Y. 559; Bruen y. Bokea, 4 Den. 66; Bogert v. Wermlya, 10 N T M7; Denny v. Smith, 18 id. 567.
§ 399. Attempt to commence action in a cout of record. - An attempt to commence an action, in a court of record, is equivalent to the commencement thereof against each defendant, within the meaning of each provision of this act, which limits the time for com. mencing an action, when the summons is delivered, with the intent that it shall be actually served, to the aleriff, or, where the sheriff is a party, to z coroner of the county, in which that defendant, or one of two or more co-defendants, wlio are joint contractors, or other. wise united in interest with him, resides or last resided ; or, if the defendant is a corporation, to a like officer of the county, in which it is established by law, or wherein its general business is or was last transacted, or wherein it keeps, or last kept, an ofice for the transaction of business. But in order to entitle a plaintiff to the benefit of this section, the delivery of the summous to an officer must be followed, within sixty days after the expiration of the time limited for the actual comme uce. ment of the action, by personal service thereof upon the defendant sought to be charged, or by the first pub lication of the summons, as against that defendant, pursuant to an order for service upon him in that man. ner.
Co. Prov., part of 2 99, an'. Davis v. Dume, 18 Abb. 360; Knight o. Beach, 7 Abb. N. S. 241; Kerr v. Mount, 28 N. Y 659.
$ 400. Id.; in a court not of record. The last sec. tion, excluding the provision requiring a publication or service of the sumnions within sixty days, applies to an attempt to commence an action, in a court not of record, where the summons is delivered to an officer authorized to serve the same, within the city or town, wherein
the person resides or the corporation is located, as specified in that section ; provided that actual service thereof is made with due diligence. New.
** 401. (Amended, 1828.] Exception, when defend. ant is without the State. If, wlien the cause of action accrues against a person, le is without the State, the action may be commenced within the time limited therefor, after his return into the State. If, after : cause of action las accrued against a person, he departs from and resides without the State, and remains contin.
*See ante, % 390.
uously absent therefrom for the space of one year or more, or if, without the knowledge of the person entitled to maintain the action, he resides within the State under a false name, the time of his absence or of such residence within the State under such false name is not a part of the time, limited for the commencement of the action. But this section does not apply, while a designation, made as prescribed in section four hundred and thirty, or in subdivision second of section four hundred and thirty-two, of this act, remains in force.
Co. Proc. $ 100, am'd. Bennett v. Cook, 43 N. Y. 637; Benjamine v. De Groot, 1 Denio, 151; Hickock v. Bliss, 34 Barb. 321 ; Denny v. Smith, 18 N. Y. 567; Wheeler v. Webster, 1 E. D. Smith, 1; Harden v. Palmer, 2 id. 172; Berrien v. Wright, 26' Barb. 208; Guns v. Frank, 36 id. 320; Murray v. Fisher, 5 Lans. 98; Bassett v. Bassett, 55 Barb. 503 ; affirmed 6 Alb. L. J. 166.
$ 402. Id.; when a person entitled, etc., dies before limitation expires. -- If a person, entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his represen. tative, after the expiration of that time, and within one year after his death.
Id., & 102, am'd. Bucklin o. Ford, 5 Barb, 393; Parker o. Jackson, K id. 34; Scovil v. Scovil, 45 id. 517; Sanford v. Sanford, 62 N. Y. 603; Wilkinson v. First Nat. Bank, 9 Hun, 522; Dunham v. Sage, 52 N. X.
$ 403. [Amended, 1891.] When a person liable, dies within the State. — The term of eighteen months after the death, within this state, of a person against whom a cause of action exists, or of a person who shall have died within sixty days after an attempt shall have been made to commence au action against him pursuant to the provision of section three hundred and ninety-nine of this act, is not a part of the time limited for the commencement of an action against his executor or administrator. If letters testamentary or letters of administration upon his estate are not issued, within this state, at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued is not a part of the time limited for the commencement of such an action.
See Matter of Kendrick, 107 N. Y. 104 ; 15 Abb. N. C. 192; Visscher v. Wesley, 3 Dem. 301; Cotta v. Quinlan, 2 id. 29; Chapman v. Fonda, 24 Hun, 130; Church v. Olendorf, 49 id. 439.
8 404. In suits by aliens, time of disability in case of war to be deducted.-- Where a person is disabled to sue in the courts of the State, by reason of either party being an alien subject or citizen of a country, at war with the United States, the time of the continuance
of the disability is not a part of the time limited for the commencement of the action, Co. Proc., & 103, am'd.
$ 405. Provision where judgment has been reversed. -If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is termin. ated in any other manner than by a voluntary discon. tinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination. Id., $ 104. See Lang v. Featheree, 7 S. & M. 404, § 406. Stay by injunction, etc., to be deducted. Where the commencement of an action has been stayed by injunction, or other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action. Id., 105, am'd.
$ 407. Certain actions by a principal, for misconduct of an agent, etc. -- Where an injury results from the act or omission of a deputy or agent, the time, within which an action to recover damages by reason thereof, must be commenced by the principal, against the deputy or agent, must be computed from the time, when a judgment against the principal, for the act or omission, is first recovered by the aggrieved person ; and a subsequent reversal or setting aside of the judg. ment does not extend the time. New, Overrullng Bank v. Childs, 6 Cow. 238. See Northrop o. Alin
S7 N. Y. 351.
408. Disability must exist when right accrues. A person cannot avail himself of a disability, unless it existed when his right of action or of entry accrued.
Co. Proc., 106, am'd. Bunt v. Ransom, 10 Jobne. 409; Swartwout 5. Johnson, s Cow. 74.
8 409. If several disabilities, no limitation until all removed.- Where two or more disabilities co-exist,
when the right of action or of entry accrues, the limite tion does not attach, until all are removed. Co. Proc., $ 107, am'.
$ 410. Provision when the action cannot be maintained without a demand. Where a right exists, but & demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the right to make the demand is complete; except in one of the following cases :
1. Where the right grows out of the receipt or de tention of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time, when the person, having the right to make the demand, has actual koowledge of the facts, upon which that right depends.
2. Where there was a deposit of money, not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property, not to be returned, specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the domand.
New. See Stafford v. Richardson, 15 Wend. 302; Hickok 13 Barb. 632; Lyle !. Nurray, 4 Sandf. 590; Leonard v. Pitney, Wend. 30; Allen v. Mille, 17 id. 202; Ilalden r. Crafts, 4 E. D. Smith, 490; Baird v. Walker, 12 Barb. 298; Hoffman v. Van Nostrand, 42 id. 174; Downes v, Phænix Bank, 6 Hill, 297; Bruce v. Tilson, 25 N. Y. 194; Purdy v. Sistare, 2 Hun, 126; Roberts v. Berdell, 15 Abb. N. S. 177.
$ 411. Provision in case of submission to arbitration.
Where the persons, who migh: be adverse parties in an action, have entered into a written agreement to submit to arbitration, or to refer the cause of action, or a controversy in which it might be available, or have eutered into a written submission thereof to arbitrators ; and before an award, or other determination thereupon, the agreement or submission is revoked, so as to render it ineffectual, by the death of either party thereto, or by the act of the person against whom the action might have been brought; or the execution thereof, or the remedy upon an award or other determination there. under, is stayed by injunction, or other order procured by him from a competent court or judge; the time which has elapsed, between the entering into the written submission or agreement, and the revocation