§ 369. $ 370. $ 371. $372. $ 373. Possession must be under claim of specific title. Higginbotham v. Stoddard, 72 N. 1. 94; Cutting v. Burns, 57 App. Div. 185. Not necessary to enclose or occupy all property. Stiliman v. Burfeind, 21 App. Div. 13. Possession of 20 years not sufficient. Kneller v. Lang, 137 N. 1. 591. also Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 218. See Peo Acts constituting possession or occupation, paying rent and taxes. ple v. Van Rensselaer, 9 N. Y. 291, but see Thompson v. Burhaus, 6. N. Y. 52. As to two parcels, one cultivated and other not, see N. K. E. & J. Co. v. Hendrickson, 139 N. Y. 442. Where part of lot improve a and part unimproved all deemed occupied. Holland v. Brown, 140 N. Y. 349. As to trees cut, see Mission of the I. V. v. Cronin, 143 N. ì 527. Only property occupied for 20 years is deemed held adversely. Barnes v. Light, 116 N. Y. 34. Claim must be actual and continued. Id. Claim of title may be by acts as well as assertions. Id. See also Voight v. Meyer, 42 App. Div. 352. What is not adverse possession. Voight v. Meyer, 42 App. Div. 350. Extends only to land fenced. Barnes v. Light, 116 N. Y. 34. Deed to a highway not to center. Side of road cannot be claimed by adverse possession. Hallerin v. Bell Tel. Co., 64 App. Div. 41. To commence adverse holding tenant must give up lease. Bedlow v. N. Y. Float D. D. Co., 112 N. Y. 363. § 376. Judgment in action for recovery of land, for breach of condition, not within this section. Van Rensselaer v. Wright, 121 N. Y. 626. Judgment in foreclosure not a money judgment. Barnard v. Onderdonk, 98 N. Y. 158; Presumption of payment applies in equity. Matter of Neilley, 95 N. Y. 382. § 379. $ 381. § 382. $ 383. $ 384. § 385. As to effect of payment of interest by owner of one parcel or owners of other parcels. Boughton v. Harder, 46 App. Div. 352. When mortggor's wife, who is not made a party, may sue to redeem. Campbell v. Ellwanger, 81 Hun, 259. Presumption of payment applies to a simple contract. Matter of Neilley, 95 N. Y. 382. Chattel mortgage held a sealed instrument. Dunning v. Garvin, 4 App. Div. 298. Mortgage covered two parcels one deeded to "A" without reference to mortgage, other to "B" with covenant as to mortgage, action to foreclose as to "A's" parcel barred after 20 years. Mack v. Anderson, 165 N. Y. 529.. Presumption must be pleaded. Miner v. Beekman, 50 N. Y. 337; 33 N. Y. Supp. 67. As to legacies in a will, see Loder v. Hatfield, 71 N. Y. 92. Subd. 1. Action to foreclose a contract not under seal must be com- Action to collect franchise tax. People ex rel. N. Y. L. & I. Subd. 2. Subd. 3. Jor Action for person 1 injury not resulting from negligence. 351. Statute runs from time of entry of judgment by justice. Warner v. Bartte, 22 Misc. 488. Action for personal injury to passenger must be commenced within three years. Webber v. H. & M. St. R. R. Co., 109 N. Y. 311. Action to enforce person-1 liability of director for failure to file annual report is subject to subd. 3. Chapman v. Lynch, 156 N. Y. 551. Action for loss of services of wife is subject to subd. 5. Maxon v. D., L. & W. R. R. Co., 112 N. Y. ད59. Action against witness to will for failure to observe stature must be brought within three years from death of testator. Dodge v. Cornelius, 168 N. Y. 246. Applies to penalties for non-payment of franchise tax. People ex rel. v. N. Y. Loan & Imp. Co., 157 N. Y. 70. As to action for libel see Solomon v. Bennett, 62 N. Y. App. Div. 56. What is official duty? Peck v. Hurlburt. 46 Barb. 559. wrongful attachment officer entitled to benefit of limitation. 46 App. Div. 360. In action for Hill v. White, § 386. § 388. $ 390. § 394. § 395. § 396. § 398. $ 399. $ 401. § 403. $ 405. $ 406. $ 410. What is an account-one upon which but three items appear on credit side for five years not a mutual, etc. account. Matter of Geadke, 45 App. Div. 625. See also Leahy v. Campbell, 70 App. Div. 127. Items on one side and payments merely on other not an open, running account. Compton v. Bowns, 5 Misc. 213. Charges for services rendered without refererence to time of payment or as to continuous contract. Not a mutual, etc. account. MacDonald v. Jaffa, 53 App. Div. 484. Payment must be made with intention of recognizing debt. Adams et al v. Olin et al, 140 N. Y. 150. Applies to all equitable actions. Gilmore v. Ham, 142 N. Y. 1. To reform mortgage. Sprague v. Cochran, 144 N. Y. 104. Accounting. 38 App. Div. C07; Gilmore v. Ham, 142 N. Y. 1. To vacate an asscssment. Matter of Duffy, 133 N. Y. 512. Domicile in another State of one doing business in New York, prevents statute running. Riker v. Curtis, 17 Misc. 134; 39 N. Y. Supp. 340. Lex fori governs as to statute of limitations of foreign State. Lincoln v. Battele, 6 Wend. 475, 485; Miller v. Brenham, 68 N. Y. 83. Amendment of 1897 invalid as to common law liabilities existing at that time. Gilbert v. Ackerman, 159 N. Y. 118. Liability is that created by statute. Brinckerhoff v. Bortwick, 99 N. Y. 185. Writing must acknowledge existence of debt and contain nothing inconsistent with intention to pay. Manchester v. Braedner, 107 N. Y. 346; 86 N. Y. 492. Oral evidence only admissible to identify debt. Watkins v. Jones, 63 Hun, 106. As to indorsements on promissory note. Mills v. Davis et al, 113 N. Y. 242. As to moral obligation to pay see Matter of Chapman v. City of N. 168 N. 85. As to what constitutes sufficient acknowledgment see Fletcher v. Daniels, 52 App. Div. 67. Common law rules as to effect of partial payment preserved. Smith v. Ryan, 66 N. Y. 352. Mere naked payment of no avail. Crow v. Gleason, 141 N. Y. 489. Acknowledgment must be made to creditor or some one acting for him. Henry v. Koct, 33 N. Y. 526. See also Matter of Kendrick, 107 N. Y. 104. Howell v. Leavitt, 95 N. Y. 617, Extension of limitations explained. 623; Hyland v. N. Y. C. & H. R. R. Service of summons on one partner stops statute as to other. Howell v. Dimock, 15 App. Div. 102; 44 N. Y. Supp. 271. Presentation of claim not commencement of action against city. Brehm v. Mayor, 104 N. Y. 187. Entry or order of reference of claim against executor is commencement of action. Sanford v. Sanford, 62 N. Y. 553. Applies to limitations created by contract as well as to those imposed by statute. Hamilton v. Royal Ins. Co. 156 N. Y. 327. When service is by publication action not commenced until time for publication expires. Burkhardt v. Sanford, 7 How. 329. Attempt to commence action held equivalent to its commencement. Riley v. Riley, 141 N. Y. 409. Evidence that person having domicile and residence here went to Europe not sufficient. Hart v. Kip, 148 N. Y. 306, but see also Hayden v. Pierce, 144 N. Y. 512. Applies to non-residents as well as citizens. Mayer v. Friedman, 69 N. Y. 608. Absence of one joint debtor suspends statute as to him. Denny v. Smith, 18 N. Y. 567. Statute stops at death and begins again eighteen months thereafter. Riley v. Riley, 141 N. Y. 409. This section not applicable to action under section 1843- Adams v. Fassett, 141 N. Y. 61. Action by cestui que trust after trustce's death. Hopper v. Brown, 34 Misc. 661. Plaintiff has one year after final judgment of Court of Appeals. Wooster v. 42nd St. R. R. Co., 71 N. Y. 471. Applies to actions generally not to particular or special remedies by actions. Hill v. Supervisors, 119 N. Y 344. but see also 176 N. Y. 338. Not applicable to action brought in court outside the State. Solomon v. Bennett, 62 App. Div. 56. Section 1844 is within this section. Adams v. Fassett, 149 N. Y. 61. Terpenning, 122 N. Y. 222. Attorrey in fact may be sued without demand. Wood v. Young, 141 N. Y 211. Demand necessary in case of deposit. Sheldon V. Heaton, 88 Hun. 535. See also Adams v. Olin, 140 N. Y. 150; Riley v. Riley, 141 N. Y. 469. Note payable on demand barred after six vers De La valette v. Wendt, 75 N. Y. 579. Claim against estate in time imala $$ 413-425 § 413. § 414. § 415. § 416. $ 417. § 418. $ 419. & 420. & 421. § 422. ANNOTATIONS. within six years after claimant received knowledge of administrator's answer not demurrer. Rep. 90. Baldwin v. Martin, 14 Abb. N. Remedy is by As to Limitation in fire insurance policies is specially prescribed by law. Failure to make demand does not prevent statute from running. Matter Statute Person presenting claim regarded as plaintiff of Mayor, 27 St. Rep. 188. 400. Matter of Schlesinger, 36 App. Div. 83. in that proceeding. Brush v. Barrett. 82 N. Y. from date of check. Payne v. Gardiner, begins to run Action for money deposited, time begins at demand. In case of negligence, statute begins to run at time of 29 N. Y. 146. injury. Webber v. H. & M. St. R. R. Co., 109 N. Y. 311; 15 St. Rep. 263. Haynes v. Onder Filing of lis pendens, not commencement of action. Ingersoll v. Mangam, 84 N. Y. 622. 412. es to place of trial. Fisher v. Ogden, Summons cannot be amended except by order of court. As to subscription of post office Feist v. Mayor, 15 App. Div. 495. Statement in complaint governs Form of summons is same in all cases. Van Cleif v. Van Vechten. 130 Notice that judgment will be taken for certain sum with interest for De Witt v. Swift, 3 How. Pr. 280. certain date sufficient. sum demanded in complaint unless Clerk must enter judgment for Matter Bullard v. Sherwood, 85 N. Y. 253. Clerk cannot plaintiff elects otherwise. enter judgment for unliquidated damages without order of court. of Scharmann, 49 App. Div. 278. or by Non-resident Defendant can only appear by notice of appearance, by answer demurrer. Valentine v. Myers Sanitary Depot, 36 Hun, 201. Reed v. Chilson, 142 N. Y. 152. Party may appear Obtaining extension may appear specially. Martin v. Lowenstine, 68 N. Y. 456. Paine Lumber Co. v. Galbraith. at any time. of time to answer is not an appearance. 38 App. Div. 69. Time to answer for infant defendant begins to run when guardian & 423. One who unreasonably defends in foreclosure costs limited by section. § 424. 357. Fact that service by publication has been commenced does not prevent Fuller v. Beck, 108 N. Y. defendant from appearing voluntarily. Service of notice of retainer and appearance is equivalent to service of General appearance waives Reed v. Chilson, 142 N. Y. 152. Palmer v. Phoenix Mut. Life Ins. Co., objection to jurisdiction over person. 84 N. Y. 63. Appearance by guardian ad litem for infant not served with summons is not voluntary appearance. summons. Ingersoll v. Mangam, 84 N. Y. 622. Hunter v. Lester, 18 How. 347: Lorey v. $-425. Service by plaintiff not void. Where person avoids service 421 31 N. Y. Supp. 950. Martin v. Raffin. Stanley, 83 Hun. and summons is laid on his shoulders, held good service. Summons cannot be served on non-resident while Service 21 N. Y. Supp. 1043. Matthews". Tufts, 87 N. Y. 68. in this State as Dunfor V. on lunatic is made by serving lunatic and person with whom he res' les Heller v. Heller, 6 How. 194. witness. 2 As to service on sheriff see § 427. § 428. § 430. § 431. § 432. $ 434. § 435. § 436. § 437. $ 438. $ 439. $ 440. $ 441. Weaver, 84 N. Y. 445. Service on infant alone not sufficient. v. Mangam, 84 N. Y. 622. Ingersoll Where record did not show service on infant inference may be had that he was not served. Smith v. Reid, 134 N. Y. 568. Service of summons on committee and appointment of guardian ad litem without leave of court is irregular. Smith v. Keteitas, 27 App. Div. 27. Filing in county clerk's office delivery and consent of person designated is absolutely necessary. Lyster v. Pearson, 7 Misc. 93. Service on superintendent of work of operating lines of domestic telegraph company held geod. Barrett v. A. T. & T. Co., 138 N. Y. 491. Service on director who has sold his stock held invalid. Beardsley v. et al. Johns. et al., 121 N. Y. 224. Division superintendent held to be managing agent. Brayton v. N. Y. L. E. & W. R. Co., 25 N., Y. Supp. 264; 72 un, 602. Proof must show service on one who IS ofheer not who "has been." Cameron v. U. T. Co., 67 App. Div. 557. Service cn person known as representative" whose name appeared in directory as manager not valid. Coler v. Pittsburgh Bridge Co., 149 N. Y. 281; 66 St. Rep. 616; see also Young & Fletcher Co. v. Welsbach Light Co., 55 App. Div. 16. Designation failing to state where service can be made is void. McClure v. Supreme Lodge Knights of Honor, 41 App. Div. 131. Service on attorney whose relation is simply that of attorney of record in an action, is not valid. Taylor v. G. P. P. Association et al. 136 N. Y. 343. Service on person represented to have full power and authority held valid. Perrine v. Ransom Gas Machine Co., 60 App. Div. 32. When defendants fail to perform contract guarantecing, to de end plaintiff from suits, cause of action arose within this State. Childs et al. v. Harris Mfg. Co., 164 N. Y. 480. Service on agent of foreign corperation having no office in State. Young & Fletcher Co. v. Welsbach Lt. Co., 55 App. Div. 16. Affidavit must show that copy was delivered to person served. Vitola v. Bee Pub. Co., 66 App. Div. 582. Where defendant submits itself to jurisdiction of court, can not raise question as to service of summons. Farmer v. Nat. Life Ass'n. of Hartford, 138 N. Y. 265; 52 St. Rep. 346. Order for substituted service cannot be had in case of temporary ab sence. Ottman v. Daley, 17 Civ. Pro. 62. If the affidavits bring case within the statute it is sufficient if other facts in statute are shown to satisfaction of judge. Haswell et al. v. Lincks, 87 N. Y. 637. When order may be obtained. Mallory v. Lennon, 22 Misc. 542. One served by substituted service must answer within twenty days. v. McEwen, 16 Hun, 625. Cause of action must be one of which court can take cognizance. Paget et al. v. Stevens et al., 143 N. Y. 172; Bryan v. University Pub. Co. of N. Y., 112 N. Y. 382. Affidavit that defendant is a non-resident nor can be found therein is insufficient. McCracken v. Flanagan et al., 127 N. Y. 493; S. C. 141 N. Y. 177; see also Kennedy v. N. Y. Life Ins. & Trust 101 N. Y. 487; Carleton v. Carleton, 85 N. Y. 316, and Howe Machine Co. v. Pettibone. 74 N. Y. 68. Co.. Complaint must set out cause of action of which court can take cog. nizance. Paget et al. v. Stevens et al. 143 N. Y. 172; Montgomery v. Boyd, 60 App. Div. 136. Affidavit must show exercise of, and the failure to find defendant in State "after due diligence.' McCracken v. Flanagan, 127 N. Y. 493. See also as to sufficiency of affidavit. Crouter v. Crouter et al., 133 . Y. 55. Thom Court at special term cannot make order Schumaker v. Crossman. 12 Week. Dig. 99: see also 14 App. Div. 215. Order must be served with summons and complaint on defendant without the State. Ludden v. Degenar 14 App. Div. 397: 43 N. Y. Supp. 908. Order may direct either mole alon. Meter of Field, 131 N. Y. 184: 42 N. Y. St. Rep. 863. Must be one public tinch week. Doheny v. Warden. 75 App. Div. 47. Justice has power to direct how and velone should be directed. Union Trust Co. v. Driggs, 62 App. Service not complete till the evniration of forty-two days. Crouter v. Crouter 122 N. V. 5 44 N. Y. St. Ren 315. Six full weeks must elanse. rate of Koch. 19 Civ. Pro. 165. As to service without the State. See Mcket Not Bank v. Pac. Nat. Bank, 89 N. Y. 397. Div $ 442. § 444. Where papers not filed proceedings may be set aside. 23 Misc. 299. AS to sufficiency of notice see Denman v. McGuire, 101 N. Y. 161. Remedy for refusal of publisher to make affidavit is by motion un section 885. Eberle v. Krebs, 50 App. Div. 450. $ 445. Remedy as to restitution not conclusive and party may bring action therefor. Haebler v. Myers, 132 N. Y. 363. All parties interested 1.1 subject matter are proper. Shepard et al. v. Manhattan R. Co. et al., 117 N. Y. 442; Bradley v. Bradley, 165 N. Y. 183. Where action is an equitable one joinder of unnecessary party will not invalidate complaint. Foulks v. Foulks, 25 St. Rep. 339. Private individual cannot maintain action to abate public nuisance unless specially injured. Adler v. Manhattan Ry. Co., 138 N. Y. 173. $ 447. $ 448. § 449. $ 450. $ 451. $ 452. § 453. $ 454. § 456. Objection of defect parties defendant must be taken by demurrer or answer. Garrett v. Wood, 13 App. Div. 8. In action at law plaintiff cannot be compelled to bring in new parties. Chapman v. Forbes, 123 N. Y. 536. See also 166 N. Y. 405, but see Wokal v. Belsky, 53 App. Div. 167. When corporation is proper party. King et al. v. Barries et al., 109 N. Y. 267. Distinction between 447 and 452 laid down. Lewisohn v. Anaconda Copper Co., 29 App. Div. 554. When parties may be made defendants to avoid multiplicity of suits. Board of Supervisors v. Deyoe, 77 N. Y. 219. Where one sues for himself and others, allegation must so state in complaint. Roosevelt v. Varnum, 12 How. 469. See also Hubbard v. Eames, 22 Barb. 597. Stockholder may maintain action for himself and others. Butler v. Wood, 37 N. Y. 317; MacArdel v. Alcott, 62 App. Div. 127. On motion to change venue, one of a class for whose benefit action brought will not be considered. Brown v. Bache, 66 App. Div. 367. Where plaintiff sues individually action cannot be maintained as brought by trustee of express trust. Vestner v. Findla, 10 Misc. 410. Agent to collect cannot sue as trustee of express trust. 38 N. Y. Supp. 87. Convict cannot sue but may be defendant. Bowles v. Haberman, 95 N. Y. 246. To protect infant's property action should be brought in name of infant by guardian ad litem. Carr v. Hoff, 57 Hun, 18. Committee of lunatic not trustee of express trust. Burnet v. Bookstaver, 10 Hun, 481. Plaintiff must have right of possession and ownership to sue on promissory note. Hays v. Hathorn, 74 N. Y. 486. Contract made in the name of and for the benefit of another, principal may maintain action. Weed V. Hamburg Bremen Fire Ins. Co., 133 N. Y. 394. Legatee cannot maintain action to construe will. Sutherland v. Ronald, 11 Hun, 238. Hus Where occupation and possession are those of wife, husband cannot maintain action for nuisance. Kavanaugh v. Barker, 131 N. Y. 211. band still entitled to services of wife. Porter v. Dunn, 131 N. Y. 314. Necessaries furnished to wife, husband is liable. Gates v. Brower, 9 N. Y. 205; Zimmer v. Settle, 124 N. Y. 37. Trespass committed by wife in care of her separate estate is her personal tort. Quilty v. Battie, 135 N. Y. 201. The name by which one is ordinarily known is the one under which he may be sued. Cooper v. Barr, 45 Barb. 9. Section does not permit use of fictitious name unless applicable to specific individual sued, whose name is not known. Town of Hancock v. First Nat. Bank, 93 N. Y. 85; Tyrrell v. Seaman's Bank, 57 App. Div. 381. Uhlfelder v. Court must direct party having interest to be brought in. Tamsen, 15 App. Div. 436. Third party cannot intervene in action for recovery of money only. Bauer v. Dewey, 166 N. Y. 402; Rosenberg v. Solomon, 144 N. Y. 92. See also as to right of one interested to be brought in. Femberg v. American Surety Co., 33 Misc. 458. All conflicting claimants should be made parties. Mahr et al. v. N. U. F. Ins. Society, 127 N. Y. 452. Section has no reference to parties upon whom interest devolves ren!ing action. Griswold v. Caldwell, 14 Misc. 299. After judgment it seems necessary in order to act under this section to vacate original judgme Organ v. Wall, 19 Hun, 184. Does not apply to separate instruments as lease with guaranty. Tiblits v. Percy, 24 Barb. 39. but see Carman v. Ploss, 23 N. Y. 286. Section refers to contracts upon which the parties are severally liable. Straus v. Hoadley, 23 App. Div. 360. Action against tort feasors not stricken from calendar because one party |