§ 52. Action for penalty given to common informer. An action upon a statute a penalty or forfeiture given wholly or partly to any person who will prosecute for same must be commenced within one year after the commission of the offense, and the action is not commenced within the year by a private person, it may be commen within two years thereafter in behalf of the people of the state by the attorney-gene or the district attorney of the county where the offense was committed.

Source--CCP § 387 unchanged-Revisers' Note.

§ 53. Limitation where none specially prescribed. An action, the limitation which is not specifically prescribed in this article, must be commenced within ten ye after the cause of action accrues.

Source CCP § 388 unchanged-Revisers' note. То declare trust-Attorney for plaintiff

§ 54. Certain actions by the people subject to same limitations. The limitation prescribed in this [article for actions other than for the recovery of real property

apply alike to actions brought in the name of the people of the state, or for their beneat, and to actions by private persons.

Source CCP § 389 unchanged-Revisers' Note., Mis 30. 168 NYS 463). Simple contract debis
Actions by people limited like private actions- (State 125 NY 312).
Set aside purchase by executors (NYCentral 10 Cited but not applied-Brandreth 14 Hun 585.

§ 55. Action against nonresident. Where a cause of action, which does not involve the title to or possession of real property within the state, accrues against a 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 residence for bringing a like action, provided that if the limitation of the time fixed by the laws of his residence for bringing such action be less than the time fixed by the laws of this state for a like action, the limitation fixed by the laws of this state shall apply.

Source CCP 390; last sente ce omitted as 154 AD 130, 139 NYS 129). temporary-Revisers' Note.

Star (*) means read Not into note heading. Actions barred by foreign law-*Attorney's ser Vices, action for, rendered in tax proceedings Robeson 76 Hun 444, 28 NYS 104). Commissions, action by broker for (Whiting 188 AD 825 176 NYS 639). *Contract for marketing patented devices, action for profits arising (Cook 228 J 1921. Frand. action for (Klotz 220 NY 347, afg 166 AD 963, 151 NYS 1125). *Goods sold, action for, statute suspended by defendant's absence from state (Miskawaka 93 Mis 224, 156 NYS 778). Judgment, action on (Beer 65 Hun 17 19 NYS 378). *Mortgage foreclosure deficiency, action for (Hutchinson 192 NY 375, rvg 118 AD 910. 103 NYS 1129). Note, action on (Matteson 56 AD 91. 67 NYS 612: Howe 2 HowNS 50%), 'debt revived (Howe 3 StR 576; Howe 17 ANC 397), statute tolled by defendant's leaving state (Taylor 17 AD 517, 45 NYS 707, rvd 162 NY 513). Passenger's injuries action for (Penfield 29 F 494, afd 134 US 351). Purchase price of lard. action for (Belden 33 Mis 659, 68 NYS 205). Services, action by bond broker for (Smith

*Stock assessments: action for (Fearing 73 F 116), receiver's suit to enforce (Irvine 225 F 834).

Actions not barred by local law-Note. action on, defendant foreign corporation having become a resident by taking out license to do business (Weidenfeld 267 F 699).

Residence upon accrual of cause governs Louisiana, subsequently resident of New York (Aultman 79 F 238). Utah defendant subsequently resident of California (Utah 109 AD 526, 96 NYS 338).

Prior rule-Limitation statute of forum governed (NYLife 125 NY 660. rvg 11 NYS 349; Clark 94 NY 217: Miller 68 NY 83; Olcott 20 NY 210: Power 43 Barb 214; Touladon 37 How 145 Ruggles 3 Johns 263; Lincoln 6 Wend 475).

Constitutionality-Section not violative of Fed eral Constitution Art 4 § 2 (Klotz 220 NY 347. afg 166 AD 963. 151 NYS 1125). Construction-Court will not construe provision after counsel has unsuccessfully pleaded, foreig limitation (Howe 6 StR 261).

§ 56. Accrual of action on 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.

Source CCP 386 unchanged-Revisers' Note. Star (*) means read Not into note heading. What are mutual, open, and current accountsMay exist between corporations (Kelly 190 AD 750 180 NYS 805). Debits on one side and credits on other (Williams 7 CivP 282). Farmer selling milk to merchant who sold goods to farmer Conner 161 AD 360. 146 NYS 375). Goods sold and delivered (Green 79 NY 1: Becker 37 Hun 35: Sickles 20 Wend 72). Labor and services (Swift 5 AD 597, 39 NYS 384). Miller's supplies to physician and professional services to miller Miller 147 AD 214. 131 NYS 1041). *One item In 6 years and mutual dealings (Tucker 6 Cow 193). One item in 6 years but no mutual deal ing (Kimball 7 Wend 322). Partnership dealings Eno 102 NY 720). Personal services of estate claimant and notes and bonds to testator's credit (Ross 6 Hun 80). Purchase of lottery tickets one side: goods sold and services performed on other Chamberlain 9 Wend 127). Rent collector's c'aim for services over period of years. crediting defendant with loan (Haffner 49 AD 193. 63 NYS 55). Services for many years, annual payments (Denise 110 NY 562). Store acCourt (Green 79 NY 1: Hall 60 un 309. 14 NYS 603). Account with 3 credits in 5 years ladke 45 AD 625, 60 NYS 869). *Architect's Services (Meehan 88 NYS 820). *Bank deposits (Viets 31 Hun 484 dis op). *Claim against husband's estate for necessaries furnished abandoned wife (Dodge 107 Mis 257. 176 NYS 562) *Claim for services for which no payments made account kept (Leahy 70 AD 127. 75 NYS 72 *Debits on one side and payments merely on other (Lowenthal 110 NY 1045: Compton 5 M 213, 25 NYS 465). *Estate claim (Haltslander

5 Hun 348). *Estate claim for board which
includes o ly credits during time when statute
would not be a bar (Clyde 155 NYS 621). *In-
dependent transactions between parties to run-
ning account cannot be considered as items in
general account (American 185 AD 898. 171 NV
214). *Items of moneys received and paid by
husband for wife (Adams 140 NY 150).
*Lia-
bility reduced to note (Sanger 187 NYS 60**

Loans between lender and borrowing firm (Gir-
vin 160 F 197). *Money items without specific
application to any indebtedness (Raux 90 NY
30S). *Physician's services (Burdick 20 AD
205, 51 NYS 789). *With items on one side
and payments only on other (Crump 172 NYS
338). *Plumbing services, items on one side and
payments on other (McDonald 53 AD 484, 65
NYS 1059). *Series of sales with separate bills
and payments applied on particular bills (Albro
60 NY 630). *Services rendered without express
agreement and non payments made within 6 years
(Gardner 103 NY 533). *Tenant applying pro-
ceeds. under agreement to market hay, to debt
due landlord, but without landlord's authority
(Pulver 22 Mis 429, 50 NYS 756).
*Two sepa-
rate items plumbing work performed 2 years apart
and no payment. set off, or cross demand (Fennell
24 Mis 728. 53 NYS 797). *Use of horses.
where owner collected bills weekly and never
mentioned general account to defendant (Crow
141 NY 493). *Wagon repairs, items on one
side and payments only on other (Klein 67 Mis
425. 123 NYS 119).

Reciprocal demands-Same as "mutual accounts" used in former statutes (Green 79 NY 1). History Green 79 NY 1.

§ 57. Action accruing after death and before grant of letters. For the purpose of computing the time within which an action must be commenced in a 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.

Source CCP § 392 unchanged-Revisers' Note. Star (*) means read Not into note heading. Section not applicable-To contract limitation (Matthews 9 AD 339, 41 NYS 304, mod 154 NY 449).

Hun 54, 18 NYS 571). *Death by wrongful act (Barnes 22 AD 520, 48 NYS 36).

Disabled persons may sue after disabilityChild of decedent not of age when property was taken (Lunch 89 Hun 112, 34 NYS 1083).

Actions within section-Converting goods of Cited but not applied-Crapo 183 NY 395; Sanplaintiffs intestate (Bucklin 5 Barb 393). *Acford 62 NY 553; Everitt 41 Barb 385; Amercounting against surviving partner (Cohen 64ican 230 F 545.

§ 58. Action on bill or note issued as money. This article does not affect an action to enforce the payment of a bill, note or other evidence of debt issued or put in circulation as money.

Source CCP § 393, amended to express the Cited but not applied-Pennsylvania 198 F 772. apparent meaning-Revisers' Note.

§ 59. Acknowledgment or new promise must be in writing. An acknowledgment or promise 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 [the provisions of this article relating to the limitations of time within which an action must be brought other than for the recovery of real property]. But this section does not alter the effect of a payment of principal or interest.

Source CCP § 395, substance unchanged-Revisers Note.

Star (*) means read Not into note heading. Acknowledgment-Account stated (Delabarre 92 NYS 129). *Adjudication of amount due (Mutual 144 NYS 476). Admission: *of indebtedness (Stevens 5 StR 258). *of promise to pay, but liability repudiated (Davis 61 Hun 87, 15 NYS 431), of responsibility for bill rendered (Serrell 106 AD 482, 94 NYS 805), of right to accounting (Doncourt 55 Mis 594, 105 NYS 906), *on witness stand (Bloodgood 8 NY 362), to creditor's agent (Winterton 7 Hun 230). *to stranger (Wakeman 9 NY 85), to stranger to be communicated to creditor (DeFreest 98 NY 217). Agree ment to waive statute (Anderson 28 Hun 16) As to surety, payment of interest by authorized person (Gould 86 NY 75). Authorized renewal of first advance under continuing guaranty (City 86 NY 484). Bankrupt's schedule (Currier 192 F 695). Entry of payment in debtor's book (Gilbert 93 NY 483). Executor's inventory, inclusion of note (Morrow 12 Hun 386; Ross 6 Hun 80). Expression of desire to pay (Fletcher 52 AD 67, 64 NYS 861), intention to pay (Cudd 63 Hun 142. 17 NYS 582; Willis 53 Mis 462, 102 NYS 1004) as soon as able (Allen 4 NYS 896), possible future ability to pay (Kahn 28 Mis 572, 59 NYS 853), willingness to pay (Shaw 14 AD 265, 43 NYS 470). Giving note and chattel mortgage (Acker 81 NY 143), note of third person (Young 151 AD 753, 135 NYS 939) as collateral security or part payment (Smith 66 NY 352). Implied promise to pay (Wright 23 Mis 629, 52 NYS 99). Indorsement of: part payment (Bouton 4 AD 251, 38 NYS 498), payment of interest (Hearman's 19 NYS 539). *Indorsement within statutory period (Clapsaddle 24 NYS 313). Inquiry if installments would be accepted (Crandal 159 NYS 146), Letter acknowledging debt

(Hodnett 64 AD 163, 71 NYS 831; Conn 67 NYS 466; Lorillard 107 F 677), promising to pay (Levy 106 AD 394, 94 NYS 905; McCahill 37 Hun 504). *Letter not containing promise or acknowledgment (Connecticut 58 AD 493, 69 NYS 518, mod 172 NY 497). *Looking over ac count and making statement (Gass 90 NYS 769) *Mere statement of moneys received (Yates 42 AD 356, 59 NYS 78). *Note: for part of debt (Lawrence 44 Hun 582), *given without debtor's knowledge (Union 154 AD 869, 139 NYS 835). Offer of check for less amount (Heaton 69 Hun 423, 23 NYS 469), due bill (Benedict 95 A 602, 88 NYS 1052), *future payment not accepted (Meehan 29 Mis 167, 60 NYS 1003). *to buy claim (Conn 172 NY 497). *Oral admission (Fletcher 67 Barb 364) *and acts in pais (McCotter 4 Iun 107). *Oral communication of attorney (Kendrick 107 NY 104). Order to pay delivered to third person (Manchester 107 NY 346). Part payment (Jefferson 197 NY 14; Mills 113 NY 243; Miller 54 NY 114; Harper 53 NY 442 Kepecs 176 NYS 477), *by administrator (McLaren 36 NY 88), *by assignee for creditors (Pickett 34 NY 175), by stranger (Brooklyn 197 NY 210). Payment (Bowe 9 Hun 6), by agent (Brooklyn 57 Mis 195, 107 NYS 584), by bankrupt before filing petition (Banks 207 F 662). *by co-surety (Hard 206 NY 179), by incompe tent's committee (Jakobson 93 Mis 61, 156 NYS 635). by joint maker (Hulbert 20 Hun 454), stranger (Murdock 145 NY 55; Blair 105 NY 636 Littlefield 91 NY 203; Security 160 AD 315, 14 NYS 5), of interest by third person (McMuller 89 NY 456), of usurious interest (Consalus 9 NY 34). *on separate debt (Crow 141 NY 489 Adams 140 NY 150), to take effect at future time (Dings 45 Hun 436). Promise: *by executor (Schutz 146 NY 137), *by stranger (Edey 102 A 578, 183 NYS 313), to pay "as soon as I can'

by

(Allen 11 StR 674), to pay when able (Rosopsky 154 NYS 1), to try and do his best (Zinn 152 AD 76, 136 NYS 737). Recognition of moral obliga tion (Hegstad 165 NYS 898). *Renewed oral promise (Laughey 3 StR 276). Resolution of county supervision (Woods 136 NY 403). *Scheduling debts in bankruptcy (Hyde 179 AD 73, 166 NYS 110). Statement of indebtedness by debtor at creditor's request (Ferguson 267 F 817). *Testa

mentary provision (Petrie 38 Hun 259). Writing signature and "renewed" on note (Maurice 78 Mis 357. 138 NYS 425). Writing without date (Kincaid 73 NY 189). Written promise to pay interest (Kincaid 10 Hun 9).

Section inapplicable To tort actions (Reilly 43 NYS 383).

Explaining-That statute of limitations must be pleaded under CP § 74 (Clock 10 Hun 97).

§ 60. Certain disabilities excluded from time to commence action. If a person entitled to maintain an action [other than for the recovery of real property], 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

2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life; the time of such a disability is not a part of the time limited in this article 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.

Source CCP 396, substance unchanged-Re- 98), recovery legacy (Dunham 22 AbNC 482, 6 visers' Note.

Star (*) means read Not into note heading. Actions within section-*Annual deed executed by Infant (O'Donohue 114 NYS 536). Compel accounting by executor (Pond 40 Mis 66, 81 NYS 249). Ejectment (Messinger 101 NYS 387). Personal injury suit (Pennsylvania 198 F 772; Me Knight 186 NY 35. rvg 98 AD 622, 90 NYS 1105). Set aside deed (German 164 AD 234 149 NYS 654).

Persons disabled-Infants (McKnight 186 NY 35. rvg 98 AD 622, 90 NYS 1105: Rogers 15 NY 316; Frazer 92 NY 239; Bucklin 1 Keyes 141: Pond 40 Mis 66, 81 NYS 249: Reilly 4" NYS 383). Insane person (Mills 48 Hun 97) Prisoner (Messinger 101 NYS 387). Weak minded grantor (Piper 107 NY 67).

Continuing disability extends five years Insanity: action to cancel deed (German 164 AD 234. 149 NYS 654). Insanity or imprisonment: action to redeem from mortgagee in possession (Messinger 101 NYS 387).

Ceasing disability extends one year-Action by former infant: compel accounting for rents and profits (Miller 9 StR 763), establish interest in realty (Otier 96 Mis 481. 160 NYS 610), impress trust (Cahill 93 AD 106. 86 NYS 1009), personal injuries (Preusse 134 AD 383, 119 NYS

NYS 563), recover rents and profits (Garvey 7 NYS 818), redeem from mortgage (Messinger 101 NYS 387). remove cloud on title (Ford 215 N 10, afg 155 AD 433. 137 NYS 54). *Infancy ceasing during limitation period (Hyland 24 AD 417, 48 NYS 416; Gabriel 79 Mis 346, 139 NYS 778; Jagau 11 Mis 380, 32 NYS 144; Reilly 43 NYS 383). *Limitations not commencing until after infant of age (Collins 3 Dem 30, 6 Civl' 85).

Infant's disability ceases-Commencement of suit by guardian (Becker 28 Hun 207; Geibel 91 Hun 550, 36 NYS 238).

Disability cannot be added to disability-Several minorities (Messinger 101 NYS 387).

Other sections affected-Laws 1886. c 572 § 1. as to actions against city for negligent personal injuries (McKnight 186 NY 35. rvg 98 AD 622. 90 NYS 1105; Conway 139 AD 446, 124 NYS 660: *Norton 16 Mis 303. 38 NYS 90). CCP § 2648 as to time for application for revocation of will's probate (Becker 28 Hun 207). City charter provision requiring notice within 30 days of claim for damages (Winger 190 NY 198, rvg 119 AD 586, 104 NYS 39).

Cited but not applied-Sharrow 214 NY 110: Ackerman 200 NY 82: Clock 10 Hun 97; Wilkinson 9 Hun 522, afd 72 NY 499.

§ 61. Defense or counterclaim. A cause of action other than for the recovery of real property, upon which an action cannot be maintained as prescribed in this article, cannot be effectually interposed as a defense or counterclaim.

Source CCP 397, substance unchanged-Revisers' Note.

Star (*) means read Not into note heading. Outlawed defenses forbidden-Insanity of grantor as defense to foreclosure of mortgage given by grantee (German 164 AD 234, 149 NYS 654). *Negligent performance as defense to action for services (Marsh 68 Mis 587, 125 NYS 245).

Section

Outlawed counterclaims forbidden-Equitable counterclaim: for less number of acres in farm purchased (Gallup 132 NY 370), for reformation (Halbe 176 AD 588, 163 NYS 895).

Defense or counterclaim not interposed-Action to recover back payment made on barred debt (Kelly 190 AD 750, 180 NYS 805).

ARTICLE 3

COURTS, JUDGES AND REFEREES

62. Court; general jurisdiction and power.

63. General powers of courts of record.

64. General jurisdiction of supreme court,

65. Powers of justice of supreme court.

66. Grant by appellate division of orders refused by court or justice.

67. Jurisdiction of county court.

68. When domestic corporation or joint stock company deemed resident for determining

jurisdiction of county court.

69. When jurisdiction of county court co-extensive with supreme court. 70. Sessions of county court.

71. Application of provisions to county court.

72. Service of execution or process of county court in any county.

73. Incapacity of county judge or special county judge.

74. Power of county judge in matters before county court.

75. Power of county judge in special proceedings.

76. Power of county judge when holding court in another county.

77. Power of county judge to perform duties of justice of supreme court at chambers. 78. Continuance of proceedings before judges of same court.

79. Vacancies or changes in judges; power of judge out of office.

80. Powers of court exercisable by referees.

81. Removal of referees and other officers and appoinment of successors.

§ 62. Courts; general jurisdiction and powers. The courts referred to in this act are enumerated in sections two and three of the judiciary law. Each of those courts shall continue to exercise the jurisdiction and powers now vested in it by law according to the course and practice of the court, except as otherwise prescribed.

|

§ 63. General powers of courts of record. 1. To issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court; subject, however, to the limitations prescribed by law with respect to the portion of the state in which the process of a local court of record may be served.

2. To administer an oath to a witness, in the exercise of the powers and duties of