adultery, in which an issue of fact is raised by the pleadings. Parker v. Parker, 3 Abb. 478. c. Probate of wills.-It is a matter of right to have an issue of fact awarded, to be tried by a jury in a case where the supreme court has reversed the decision of a surrogate upon a question of fact. The Code has not changed the practice established by statute, regulating appeals from surrogates' decrees, admitting or refusing probate of wills. Johnson v. Hicks, 1 Lans. 150. d. Appeal from order.-An order settling issues in a case of an equitable nature, to be tried by a jury, is not appealable. Wood v. Mayor, etc., of New York, 4 Abb. N. S. 152; S. C. below where the proceedings on making the order are reported, 3 id. 467. e The former practice is examined by WILLARD, J., in Snell v. Loucks, 12 Barb. 385. § 73. [66.] (Am'd 1849.) Repeal of existing limitations. The provisions contained in the chapter of the Revised Statutes, entitled "Of actions and the times of commencing them," are repealed, and the provisions of this title are substituted in their stead. This title shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form. I. WHEN ACTION ACCRUES. a. Computing time.-The day on which a right of action accrues is to be excluded, in computing the time within which an action is to be commenced. McGraw v. Walker, 2 Hilt. 404. b. Immediate payment.-An action may be maintained on a contract, for immediate payment, when it is made to appear that the defendant, on being requested to pay the amount due, or give his notes at long periods, or make some other arrangement, absolutely refuses to do anything about it, notwithstanding such contract liquidates the amount of the debt, and provides that the times of payment are to be arranged after the consummation of another contract, to be made by the debtor with a third person. Lee v. Decker, 6 Abb. N. S. 392. Until the creditor has a right to demand present payment from his debtor, a cause of action does not accrue within the statute of limitations. Van Nest v. Lott, 16 Abb. 130. See Van Tassel v. Van Tassel, 31 Barb. 439. c. Executors and administrators.— As to commencement of actions by executors, see 2 R. S. 448, § 9, and Coddington v. Carnley, 2 Hilt. 528. When administrators are sued upon a joint and several note, with others, they are to be regarded in respect to the application of the statute of limitations, as if they had been sued separately; and the eighteen months after the death of their intestate, during which suits are not to be brought against personal representatives, must be added to the six years before the statute can be made a bar. Parker v. Jackson, 16 Barb. 34. Scovil v. Scovil, 45 id. 517; S. C. 30 How. 246; Laws of 1868, ch. 594. See notes under § 102, post. d. Suits against deceased persons. An executor, cited to account before a surrogate, may avail himself of the statue of limitations in bar of any claim presented against the estate. Martin v. Gage, 9 N. Y. (5 Seld.), 398. The statute of limitations may be interposed in a surrogate's court, as well as in any other. And in a case where courts of law have a concurrent jurisdiction with the surrogate and a court of equity, the six years limitation will constitute a bar to the proceedings in a surrogate's court. Smith v. Remington, 42 Barb. 75. That provision of the revised statues barring any action upon a claim against the estate of a deceased person, which is not sued within six months after its rejection by the executor, applies to, and prohibits proceedings before the surrogate to collect the claim, as well as to actions at law. Barsalou's Case, 4 Abb. 135. f. Bills and notes.-When a note has been paid by a subsequent indorsee; in an action commenced by him against prior indorsers, the statute of limitations begins to run from the time of paying the money, and not from the time when the note was due. Baker v. Cassidy, 16 Barb. 177. Premium notes given upon the organization of an insurance company under the general act, are not payable until after assessment and demand; hence, an action commenced within six years after such demand is not barred. Sands v. Sanders, 28 N. Y. (1 Tiff.), 416; S. C. 26 N. Y. (12 Smith), 239; 25 How. 82; Sands v. Annesley, 56 Barb. 598; and cases there cited. A right of action against a drawer accrues upon the non-acceptance of a bill of exchange. Whitehead v. Walker, 9 Mees. & W. 506. 9. A surety has no cause of action against the principal debtor until he has actually paid the debt. Elwood v. Deifendorf, 5 Barb. 398. No cause of action has accrued until there is some person in existence capable of bring ing an action, or at least some person to whom or against whom it may accrue. Bucklin v. Ford, 5 Barb. 393. h. Defendant out of State.-When a cause of action accrues against any person, if he be out of the State, the action may be commenced within six years after his return into the State. This rule is applicable as well to non-residents, as to citizens going out of the State. Carpenter v. Wells, 21 Barb. 593. Successive absences are to be aggregated, in computing the time, for the purpose of ascertaining whether the demand is barred by the statute. The statute is not confined to the first absence after the cause of action accrues. Berrien v. Wright, 26 Barb, 208; post, § 100. i. Against innkeeper.-An action may be commenced immediately, when the goods of a guest have been actually lost or stolen, and no demand need be made before suit brought. McDonald v. Edgerton, 5 Barb. 560. j. Defective title to lands.-The right of action of one in possession under an errocorrected, does not accrue until an attempt is neous deed which he has the right to have made to disturb his possession, founded on the error in the deed. Bartlett v. Judd, 23 Barb. 263; S. C. Aff'd, 21 N. Y. (7 Smith), 200. right to an action against the estate of a dek. Deceased partner.-The equitable ceased partner of a firm, where the surviving partner is solvent at his death, and then becomes insolvent, arises at the time the survivor becomes insolvent, and is barred in ten years thereafter. Bloodgood v. Bruen, 8 N. Y. (4 Seld.), 362; Rev'g S. C. 4 Sandf. 427. 1. Extra work.-When no time for payment for extra work is stipulated, a cause of action accrues when such work is completed. Peck v. New York & Liverpool United States Mail Steamship Co. 5 Bosw. 226. m. Action by legatees.-When several legatees join in a power of attorney to another, authorizing him to collect for them their respective legacies, each legatee may maintain an action in severalty, against the attorney, without any previous demand. Power v. Hath away, 43 Barb. 214. n. Attorney's services.-Whenever an attorney could maintain an action for professional services and disbursements, the statute of limitations commences to run against such claim. Adams v. Fort Plain Bank, 36 N. Y. (9 Tiff.), 255; S. C. 2 Trans. App. 234; Rev'g 23 How. 45. Where there is a general retainer in the same matter, an attorney may allow some of the items of his charges to overrun the six years, without peril from the statute of lim itations. Mygatt v. Willcox, 1 Lans. 55; S. C Aff'd, March, 1870; id. n. See Bruyn v. Comstock, 56 Barb. 9. 0. Deposit of money.-Money deposited with a firm or private party, is the same as if it had been deposited in a bank; until actual demand made, there is no right of action, and the statute of limitation does not begin to run before that time. Payne v. Gardiner, 29 N. Y. (2 Tiff.), 146; Aff'g S. C. 39 Barb. 634. p. Foreign factor.-The statute of limitations does not begin to run against a foreign factor, and he is not liable to an action for the proceeds of sales made by him until a demand has been made, or he has been instructed to remit. Walden v. Crafts, 2 Abb. 301. II. GENERAL. a. Mandamus.-There is no statute lim- | tual serving of the summons upon a part of iting the time within which writs of manda- the defendants, before the statute of limitamus may be obtained in this State. People ex tions has become a bar, a defendant not then rel. Olmsted v. The Board of Supervisors of served, cannot avail himself of the objection Westchester County, 12 Barb. 446. that the process was not served on him until more than six years after the cause of action accrued. White's Bank of Buffalo v. Ward, 35 Barb. 637. b. Condition in insurance policy. An action will be barred against an insurance company as defendants-where in a condition annexed to a policy, it is stipulated that no suit or action against the insurers, for the recovery of any claim upon the policy shall be sustained, in any court of law or chancery, unless commenced within six months next after any loss or damage shall have occurred. Roach v. The New York and Erie Insurance Co. 30 N. Y. (3 Tiff.), 546. c. Lex Fori.-The lex fori governs all questions arising under the statutes of limitations, of the various States of this country. Power v. Hathaway, 43 Barb. 214. In an action commenced in this State against a foreign corporation, it cannot avail itself of the statute of limitations. Olcott v. The Tioga Railroad Co. 20 N. Y. (6 Smith), 210; Rev'g S. C. 26 Barb. 147. See Thompson v. The Tioga Railroad Co. 36 Barb. 79. The statute of limitations of another State in which the cause of action arises, is not available as a defense in this State. If six years have not elapsed since the statute of this State began to run, the right of action is not barred. Toulandou v. Lachenmeyer, 37 How. 145; S. C. 6 Abb. N. S. 215. See Carpenter v. Wells, 21 Barb. 593. d. Dower.-A right of dower, accruing before the enactment of the Revised Statutes, is not affected by the limitation of the time for commencing the action prescribed by these statutes. Stewart v. Smith, 14 Abb. 75; contra, Brewster v. Brewster, 32 Barb. 428. e. Joint debtors.-In an action against several joint debtors, commenced by the ac f. Presumption. Evidence.-Statutes of limitations affect only the remedy, not the right, and except as defenses in actions against the person, only create a presumption of payment of a money demand, and may be rebutted like any other evidence thereof. Jones v. The Merchant's Bank of Albany, 4 Rob. 221; S. C. 6 Rob. 162. The presumption of payment arising under the statute of limitations, from lapse of time, is not that the payment was made at the expiration of the time fixed by the statute as a bar, but at some prior indefinite time, or when the obligation became due. Martin v. Gage, 9 N. Y. (5 Seld.), 398; New York Life Insurance and Trust Co. v. Covert, 29 Barb. 435; S. C. Rev'd 6 Abb. N. S. 154. See Wood v. Wood, 26 Barb. 356. g. Account stated.-The omission of a debtor to dispute, within a reasonable time, the accuracy of an account stated, will not prevent him from setting up the statute of limitations. Bucklin v. Chapin, 1 Lans. 443; S. C. 53 Barb. 488; 35 How. 155. h. Foreign corporations.-A foreign corporation cannot avail itself of the statute of limitations, in an action in the courts of this State. Mallory v. Tioga R. R. Co. 5 Abb. N. S. 420; S. C. 36 How. 202; 3 Keyes, 354; 1 Trans. App. 203. See Power v. Hathaway, 43 Barb. 214; Olcott v. Tioga R. R. Co. 20 N. Y. (6 Smith), 210; Rev'g S. C. 26 Barb. 147. See Thompson v. Tioga R. R. Co. 36 id. 79. §74. [67.] (A'md 1849, 1851.) Time of commencing civil actions. Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute, and in the cases mentioned in § 73. But the objection that the action was not commenced within the time limited, can only be taken by answer. a. Pleading defense.-Omitting to plead the statute of limitations, and going to trial without doing so, notwithstanding the claim is clearly barred on its face, will prevent a party from setting it up. He will be deemed to have elected to stand upon the other defenses which he made to the demand. On the trial, he cannot abjure such election. Clinton v. Eddy, 37 How. 23; S. C. 54 Barb. 54; Bucklin v. Chapin, 1 Lans. 443. There is no substantial reason why the benefit of the statute of limitations should not be extended to the assignee or transferee of any assignable demand. But unless there is a valid counterclaim set up in the answer, the plaintiff need not set up the statute by reply. Thompson v. Sickles, 46 Barb. 49. Whether the action be an equitable or a legal one, an objection that it was not commenced within the time limited by statute, can only be taken by answer. The defendant cannot demur on that ground, even where it appears on the face of the complaint, that the cause of action is barred by the statute of limitations. Sands v. St. John, 36 Barb. 628; S. C. 23 How. 140; S. C. Aff'd, 29 id. 574, n.; Voorhies v. Voorhies, 24 id. 150; Fellers v. Lee, 2 id. 488; see also Stewart v. Smith, 14 Abb. 75; Lefferts v. Hollister, 10 How. 383. b. Before surrogate.-In proceedings before a surrogate, it is too late for executors to seek to avail themselves of the statute of limitations, after the case is submitted on written points, and the evidence is closed. Van Vleck v. Burroughs, 6 Barb. 341. See note I, subd. d, § 73, ante. c. Foreclosure of mortgages.-The presumption of payment declared by the stat ute to arise after the lapse of twenty years, from the time a right of action accrues on a sealed instrument for payment of money, is not available to the owner of the equity of redemption of land, to defeat a foreclosure, if the mortgagor has made payments upon the bond and mortgage, within twenty years before the commencement of the foreclosure. New York Life Ins. & Trust Co. v. Covert, 6 Abb. N. S. 154; Rev'g S. C. 29 Barb. 435. d. General.-It may be ascertained at any time that a writing does not express the contract which it was supposed to contain. And there is no rule of law which bars a man of relief, for delay in ascertaining his rights, other than that contained in the statute of limitations. Bidwell v. The Astor Mut. Ins. Co. 16 N. Y. (2 Smith), 263. CHAPTER II. Actions for the recovery of real property. SECTION 75. When the people will not sue. 76. When actions cannot be brought by grantee from the State. 77. When actions by the people or their grantees, to be brought within twenty 78. Seisin within twenty years, when necessary, in action for real property. 80. Action must be commenced within one year after entry, or within twenty 81. Possession, when presumed; occupation deemed under legal title, unless adverse. 82. Occupation under written instrument or judgment, when deemed adverse. 87. Right of possession not affected by descent cast. 88. Certain disabilities excluded from time to commence actions. § 75. When the people will not sue. The people of this State will not sue any person for, or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the people to the same, unless, 1. Such right or title shall have accrued within forty years before any action or other proceeding for the same shall be commenced; or unless, 2. The people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years. See People v. Van Rensselaer, 8 Barb. 189; S. C. Aff'd, 9 N. Y. (5 Seld.), 291; People v. Livingston, id. 253; People v. Arnold, 4 N. §76. When action cannot be brought by grantee from the State. No action shall be brought for, or in respect to, real property, by any person claiming by virtue of letters patent, or grants from the people of this State, unless the same might have been commenced by the people, as herein specified, in case such patent or grant had not been issued or made. §77. When actions by the people or their grantees, to be brought within twenty years. When letters patent or grants of real property shall have been issued or made by the people of this State, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case, an action for the recovery of the premises so conveyed, may be brought either by the people of this State, or by any subsequent patentee or grantee of the same premises, his heirs or assigns, within twenty years after such determination was made; but not after that period. §78. Seisin within twenty years, when necessary in actions for real property. No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action. §79. Seisin within twenty years, when necessary in action or defense founded on title to or rents of real property. No cause of action or defense to an action founded upon the title to real property, or to rents or services out of the same, shall be effectual, unless it appear that the person prosecuting the action, or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question, within twenty years before the committing of the act in respect to which such action is prosecuted or defense made. Construction.-This section has been construed to mean that a party bringing an action or making a defense founded upon the title to real property, or his ancestor, etc., must have had such a seizin or possession as carries with it the title to the premises, or a right of entry which will authorize an action of ejectment. Tyler v. Heidorn, 46 Barb. 439, (463.) A party has such a title when he has a right of re-entry on breach of a condition. id. § 80. Action must be commenced within one year after entry, or within twenty years after right of entry. No entry upon real estate shall be deemed sufficient, or valid as a claim, unless an action be commenced thereupon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued. |