the time of the last item, proved in the account on either side. Co. Proc., 95. Perrinev. Hotchkiss, 2 T. & C 370; affirmed 59 N. Y. 649; Boss v. Ross, 6 Hun, 80; Helms v. Otis, 5 Lans. 137; Smith v. Velle, 60 N. Y. 106; Albro v. Figuera, id. 630; Green v. Disbrow, 7 Lans. 381; Smith . Ryan, 39 N. Y. Supr. 489; Peck v. U. S., etc., Mail Ship Co., 5 Bosw. 226; Green . Ames, 14 N. Y. 225. - § 387. Action for penalty, etc., by any person who will sue. An action upon a statute for a penalty or forfeiture, given wholly or partly to any person who will prosecute for the same, must be commenced within one year after the commission of the offence; and if the action is not commenced within the year by a private person, it may be commenced within two years thereafter, in behalf of the people of the State, by the attor ney-general, or the district-attorney of the county where the offence was committed. Id., 96. - § 388. Actions not before provided for.- An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues. Id., 97, and Everitt v. Everitt, 41 Barb. 385; Hubbell v. Sibley, 50 N. Y. 468; Miner v. Beekman, 14 Abb. N. S. 1; Peters v. Delaplaine, 49 N. Y. 362; McCotter v. Lawrence, 4 Hun, 107; Taft v. Wright, 2 T. & C. 614; Hubbell v. Medbury, 53 N. Y. 683; McTeague v. Coulter, 38 N. Y. Supr. 208; Salisbury v. Morss, 7 Lans. 359; Depew v. Dewey, 2 T. & C. 515. § 389. Actions by the people subject to the same limitations. The limitations, prescribed in this title, apply alike to actions brought in the name of the people of the State, or for their benefit, and to actions by private persons. la., § 98. *§ 390. Action against a non-resident, upon a demand barred by the law of his residence. 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, except by a resident of the State, and in one of the following cases: 1. Where the cause of action originally accrued in favor of a resident of the State. *See post, & 401. 2. Where, before the expiration of the time so limited, the person, in whose favor it originally accrued, was or became a resident of the State; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State. New. Mayer v. Friedman, 7 Hun, 218; Hall v. Robbins, 4 Lans. 463; Carpentier v. Minturn, 6 id. 56; Rathbun v. Northern Railway Co., 50 N. Y. 656. See contra, Ruggles v. Keeler, 3 Johns. 263; Olcott v. Tioga R R. Co., 20 N. Y. 224; Gans v. Frank, 36 Barb. 320; Power v. Hathaway, 43 id. 214; Toulandon v. Lachenmeyer, 6 Abb. N. S. 215. § 391. [Amended, 1877.] When person liable, etc., dies without the State.- If a person, against whom a cause of action exists, dies without the State, the time which elapses between his death, and the expiration of eighteen months after the issuing, within the State, of letters testamentary or letters of administration, is not a part of the time limited for the commencement of an action therefor, against his executor or administrator. New. See Christophers v. Garr, 6 N. Y. 61. - § 392. [Amended, 1877.] Cause of action accruing between the death of a testator or intestate, and the 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 crim. inal charge, may, within five years after the cessation of such a disability, maintain an action to recover dam. ages by reason thereof in which he may recover such sum, or the value of such property, as he would have eceived upon the final distribution of the estate, if an tion had been seasonably commenced by the execu or administrator. : Sanford v. Sanford, 62 N. Y. 553; Bucklin v. Ford, 5 Barb. oovil. Bcovil, 45 id. 517. § 393. No limitation of action on bank notes, eto-This chapter does not affect an action to enforce the payment of a bill, note, or other evidence of debt, issued by a moneyed corporation, or issued or put in circulation as money. Co. Proc., 108. § 394. [Amended, 1877.] Action against directors, etc., of banks. This chapter does not affect an action against a director or stockholder of a moneyed corpora tion, or banking association, to recover a penalty or for feiture imposed, or to enforce a liability created by law; but such an action must be brought within three years after the cause of action has accrued. Id., 109, am'd. $395. Acknowledgment or new promise must be in writing.- An acknowledgment (1) or promise,(2) 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 this title. But this section does not alter the effect of a payment of principal or interest.(3) Id., 110. (1) Hope v. Bogart, 1 Hilt. 543; Turner v. Martin, 4 Rob. 661; Berrian v. Mayor, id. 538; Loomis v. Decker, 1 Daly, 186; McNamee v. Tenny, 41 Barb. 495; Stuart v. Foster, 18 Abb. 305; Commercial Ins. Co. v. Brett, 44 Barb. 489; Rowe v. Thompson, 15 Abb. 377. (2) Chace v. Higgins, 1 T. & C. 229; Halsey v. Reid, 4 Hun, 777 ; Lansing. Blair, 43 NY. 48; Wakeman e. Sherman, 9 id. 86: Bloodgood v. Bruen, 8 id. 362. (3) Smith v. Velie, 60 N. Y. 106; Harper v. Fairley, 53 id. 442; Miller v. Talcott, 54 id. 11; First National Bank v. Ballou, 49 id. 155; Pitts v. Hunt, 6 Lans. 146; Graham v. Selover, 59 Barb. 313; Rich v. Niagara Bank, 3 Hun, 481; Smith v. Ryan, 39 N. Y. Supr. 489; Townsend v. Ingersoll, 43 How. 276; s. c., 12 Abb. N. 8. 354; Heath v. Grenell, 61 Barb. 190; Arnold v. Downing, 11 id. 554; Berrian v. Mayor, 4 Rob. 538; Van Keuren v. Parmelee, 2 N. Y. 523; Barger v. Durvin, 22 Barb. 68; Payne v. Slate, 39 Barb. 634; Bruce v. Tilson, 25 N. Y. 191. $396. Exceptions, as to persons under disabilities. -If a person, entitled to maintain an action specified in this title, except for a penalty or forfeiture, or against 2 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,(1) 2. Insane; or,(2) 3. Imprisoned on a criminal charge, or in execution apon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time nously 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 1 force. Co. Proc., 100, ani'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 . Webster, 1 E. D. Smith, 1; Harden . Palmer, 2 id. 172; Berrien v. Wright, 26 Barb. 208; Gans v. Frank, 36 14. 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 representative, after the expiration of that time, and within one year after his death. Id., 102, am'd. Bucklin v. Ford, 5 Barb. 393; Parker v. Jacksca, le id. 34; Scovil v. Scovil, 45 id. 517; Sanford v. Sanford, 62 N. Y. Ca3; Wilkinson v. First Nat. Bank, 9 Hun, 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 ion against him pursuant to the provision of section three Tred and ninety-nine of this act, is not a part of the time or the commencement of an action against his execadministrator. If letters testamentary or letters of adStration upon his estate are not issued, within this state, ast 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 war to be deducted. Where a person is disabled sue in the courts of the State, by reason of either y being an alien subject or citizen of a country, at 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 misconduct 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 judgment does not extend the time. New. Overruling Bank v. Childs, 6 Cow. 238. See Northrop v. Hill, 57 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. |