399. Attempt to commence action in a court 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 sheriff, or, where the sheriff is a party, to a coroner of the county, in which that defendant, or one of two or more co-defendants, who 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 office 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 commence. 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. Proc., part of 99, am'd. Davis v. Duffle, 18 Abb. 360; Knight v. Beach, 7 Abb. N. S. 241; Kerr u. 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 summons 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, 1888.] Exception, when defendant is without the State. If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State. If, after a cause of action has 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. 537; 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; Gans v. Frank, 36 id. 320; Murray v. Fisher, 5 Lans. 98; Bassett v. Bassett, 55 Barb. 505; 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 v. Ford, 5 Barb. 893; Parker v. Jackson, id. 34; Scovil v. Scovil, 45 id. 517; Sanford v. Sanford, 62 N. Y. 653; Wilkinson v. First Nat. Bank, 9 Hún, 522; Dunham v. Sage, 52 N. Y. 229.

$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 an 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.

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 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.

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 miscon duct 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 of 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. Overruling Bank v. Childs, 6 Cow. 238. See Northrop v. Hill, $7 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 Johns. 409; Swartwout . Johnson, 5 Cow. 74.

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 limita tion does not attach, until all are removed.

Co. Proc., 107, am'd.

§ 410. Provision when the action cannot be maintained without a demand. - Where a right exists, but a 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 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. See Stafford v. Richardson, 15 Wend. 302; Hickok v. Hickok, 13 Barb. 632; Lyle v. Murray, 4 Sandf. 590; Leonard v. Pitney, Wend. 30; Allen v. Mille, 17 id. 202; Halden v. Crafts, 4 E. D. Smith, 490; Baird v. Walker, 12 Barb. 298; Hoffman v. Van Nostrand, 42 id, 174; Downes v, Phoenix Bank, 6 Hill, 297; Bruce v. Tilson, 25 N. Y. 194; Purdy v. Sistare, 2 Hun, 126; Roberts v. Berdell, 15 Abb. N. 8.

177.

S411. Provision in case of submission to arbitration. Where the persons, who might 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 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.

412. Provision when action is discontinued, etc., after answer. — Where a defendant in an action has interposed an answer, in support of which he would be entitled to rely, at the trial, upon a defence or counter claim then existing in his favor, the remedy upon which. at the time of the commencement of the action, was not barred by the provisions of this chapter; and the com plaint 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, limi ted for the commencement of an action by the defend ant, to recover for the cause of action so interposed as a defence, or to interpose the same defence in another ac tion brought by the same plaintiff, or a person deriving title from or under him.

New.

S413. How objection taken, under this chapter. -The objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection to a defence or counter claim 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.

Co. Proc., part of 74. Williams v. Willis, 15 Abb. N. 8. 11; Sands . St. John, 36 Barb. 628; s. c., 23 How. 140; Voorhies v. Voorhies 24 Barb. 150; Baldwin v. Martin, 14 Abb. N. S. 9; Selover v. Coe, 63 N. Y. 438.

§ 414. Cases to which this chapter applies. — 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.