In suits by aliens, time of disability in case of New in form. See Scovil v. Scovil, 30 How. 246; S. C., 45 Barb. 517; Sanford v. Sanford, 62 N. Y. (17 52; Sick.) 553; 1 Wait's Pr. 51, § 404. 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 continudeducted. ance of the disability is not a part of the time limited for the commencement of the action. war to be Provision where has been reversed. Code Pro., 103, amended; 1 The effect of the rebellion of 1861 citizens resident in the rebellious states as to the claims by citizens of the loyal states against that same class of persons. Hanger v. Abbott, 6 Wall. (U. S.) 532; United States v. Wiley, 11 id. 508. § 405. If an action is commenced within the time limited therejudgment for, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, 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. Stay by injurc tion, etc., to be Code Pro., § 104, amended. See Wait's Code, 109. § 406. Where the commencement of an action has been stayed by injunction, or other order of a court or judge, or by statutory deducted. prohibition, the time of the continuance of the stay is not a part of the time, limited for the commencement of the action. Certain actions by a principal, for misconduct of an agent, etc. Code Pro., § 105, amended; 1 Wait's See Von This section applies only to the limitations prescribed by the preceding sections, and not to limitations arising from the contract of the parties. Wilkinson v. First Nat. Fire Ins. Co., 9 Hun, 522. § 407. 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 judgment does not extend the time. New provision; changing the rule in Bank of Utica v. Childs, 6 Cow. 238. § 408. A person cannot avail himself of a disability, unless it Disability existed when his right of action or of entry accrued. Code Pro., § 106, amended. See ante, §§ 367 and 375. must exist when right accrues. disabili § 409. Where two or more disabilities co-exist, when the right If several of action or of entry accrues, the limitation does not attach, until ties, no all are removed. Code Pro., § 107, amended; 1 Wait's Pr. 50. limitation until all removed. when the cannot tained § 410. Where a right exists, but a demand is necessary to entitle Provision a person to maintain an action, the time, within which the action action must be commenced, must be computed from the time, when the be mainright to make the demand is complete; except in one of the follow- without a ing cases: 1. Where the right grows out of the receipt or detention 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 knowledge 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 demand. New provision. demand. in case of sion to tion. § 411. Where the persons, who might be adverse parties in an Provision action, have entered into a written agreement to submit to arbitra- submistion, or to refer the cause of action, or a controversy in which it arbitramight be available, or have entered 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 thereunder, 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 thereof, or the expiration of the stay, is not a part of the time, limited for the commencement of the action. New. when § 412. Where a defendant in an action has interposed an answer, Provision in support of which he would be entitled to rely, at the trial, upon action is discontinued, answer. a defence or counterclaim then existing in his favor, the remedy upon etc., after which, at the time of the commencement of the action, was not barred by the provisions of this chapter; and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death; the time which intervened, between the commencement and the termination of the action, is not a part of the time, limited for the commencement of an action by the defendant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another action brought by the same plaintiff, or a person deriving title from or under him. How objection under chapter. New. § 413. The objection, that the action was not commenced within take this the time limited, can be taken only by answer. The corresponding objection to a defence or counterclaim can be taken only by reply, except where a reply is not required, in order to enable the plaintiff to raise an issue of fact, upon an allegation contained in the answer. Last clause of § 74, Code Pro.; Maurer, 5 N. Y. Sup. Ct. (T. & C.) Williams v. Willis, 15 Abb. N. S. 11. 575; S. C., 3 Hun, 552; 1 Wait's Pr. See Wait's Code, 97, 98; Cotton v. 65. Cases to which this chapter applies. § 414. The provisions of this chapter apply, and constitute the only rules of limitation applicable, to a civil action or special proceeding, except in one of the following cases: 1. A case, where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the parties. 2. A cause of action or a defence which accrued before the first day of July, 1848. The statutes then in force govern, with respect to such a cause of action or defence. 3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a special proceeding, or to take any proceeding therein, or to pursue a remedy upon a judgment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect; in either of which cases, the provisions of law applicable thereto, immediately before this act takes effect, continue to be so applicable, notwithstanding the repeal thereof. 4. A case, where the time to commence an action has expired, when this act takes effect. The word, "action", contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action. New provision. com periods of $415. The periods of limitation, prescribed by this chapter, Mode of except as otherwise specially prescribed therein, must be computed puting from the time of the accruing of the right to relief by action, spe- limitation. cial proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding. New provision. Action to be commenced by summons; time when court CHAPTER V. COMMENCEMENT OF AND PARTIES TO AN ACTION. TITLE I.- COMMENCEMENT OF AN ACTION. TITLE II.-PARTIES TO AN ACTION. TITLE I. Commencement of an action. ARTICLE 1. The summons and accompanying papers; personal service thereof; appearance of the defendant. 2. Substitutes for personal service in special cases. ARTICLE FIRST. THE SUMMONS AND ACCOMPANYING PAPERS; PERSONAL SERVICE THEREOF, SEC. 416. Action to be commenced by summons; time when court acquires juris diction. 417. Requisites of summons. 418. Form of summons. 419. Service of copy complaint or notice with summons; consequence of failure. 420. Cases where such service must be made. 421. Appearance of defendant. 422. When defendant must answer before time to appear expires. 423. Notice of no personal claim; effect of service thereof. 424. Effect of voluntary appearance. 425. Summons; when and by whom served. Sheriff's duty. 426. How personal service of summons made upon a natural person. 427, 428. Id.; in certain cases of infancy, or lunacy, etc., not judicially declared. 429. Id.; when delivery of copy to lunatic dispensed with. 430. Designation, by a resident, of a person upon whom to serve a summons during his absence; effect and revocation thereof. 431. How personal service of summons made upon a domestic corporation. 432. Id.; upon a foreign corporation. 433. Service of process, etc., to commence a special proceeding. 434. Proof of service of summons, etc.; how made. § 416. A civil action is commenced by the service of a summons. But from the time of the granting of a provisional remedy, the court acquires jurisdiction, and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and Jurisdic- liable to be divested, in a case where the jurisdiction of the court is acquires tion. |