when the right of action or of entry accrues, the limitation 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. S. 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 the act of the person against whom the action might e been brought; or the execution thereof, or the dy upon an award or other determination therer, is stayed by injunction, or other order procured m from a competent court or judge; the time has elapsed, between the entering into the a 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. -- § 413. 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 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. Co. Proc., part of 74. Williams v. Willis, 15 Abb. N. S. 11; Sanda v. St. John, 36 Barb. 628; 8. 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. 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. $415. Mode of computing periods of limitation. The periods of limitation, prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defence, or otherise, as the case requires, to the time when the claim that relief is actually interposed by the party, as a aintiff or a defendant, in the particular action or pecial proceeding. Now. CHAPTER V. COMMENCEMENT OF AND PARTIES TO AN TITLE I-COMMENCEMENT OF 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; APPEARANCE OF THE DEFEND ANT. Ano. 416. Action to be commenced by summons; time when court so quires jurisdiction. 417. Requisites of summons, 418. Form of summons. 419. Service of copy complaint or notice with summons; conse«, quence 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 per son. 427, 428. Id.; in certain cases of infancy, or lunacy, etc., not ju- 429. Id.; when delivery of copy to lunatic dispensed with. 431. How personal service of summons made upon a domestic 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. time 8 416. Action to be commenced by summons; when court acquires jurisdiction. A civil action is commenced by the service of a summons.(1) 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 liable to be divested, in a case where the jurisdiction of the court is made dependent, by a special provision of law, upon some act, to be done after the granting of the provisional remedy.(2) Co. Proc., part of 127, and 1d., 139. See 399, ante, and 721, 821. 822, and 824. post. (1) Akin v. Albany, etc., B. B. Co., 14 How. 337 O'Hara v. Brophy, 24 id. 383; Leitch v. Wells, 48 N. Y. 585; Gibbs v. Queens Ins. Co., 63 id. 114: O'Brien v. Commercial Ins. Co., 38 N. Y. Supr. 517. (2) Waffle v. Goble, 53 Barb. 517. S417. [Amended, 1879.] Requisites of summons.— The summons must contain the title of the action, specifying the court in which the action is, brought,(1) the names of the parties to the action, (2) and, if it is brought in the supreme court, the name of the county in which the plaintiff desires the trial;(3) and it must be subscribed by the plaintiff's attorney ;(4) who must add to his signature his office address, specifying a place within the State where there is a post-office. If in a city, he must add the street, and street number, if any, or other suitable designation of the particular locality.(5) Id., 128, remodelled. (1) Dix v. Palmer, 5 How. 233; James v. Kirkpatrick, id. 241; Walker v. Hubbard, 4 id. 154; Croden v. Drew, 3 Duer, 654; Webb v. Mott, 6 How. 439. (2) Miller v. Stettiner, 7 Bosw. 692; 8. c., 22 How. 518; Traver v. Eighth Ave. R. R. Co., 6 Abb. N. S. 46; Cooper. Burr, 45 Barb. 10; Bank v. McGee, 20 N. Y. 355; Hill v. Thacter, 3 How. 407; Eagleston v. Son, 5 Robt. 640. (3) Merrill v. Grinnell, 10 How. 32; Hotchkiss v. Crocker, 15 id. 336; Davison v. Pow. ell, 13 id. 288. (4) See ante, 55. Johnston v. Winter, 7 Alb. L. J. 135; Weare v. Slocum, 3 How. 397; Mut. Life Ins. Co. v. Ross, 10 Abb. 260. (5) Sup. Rule 13. Hurd v. Davis, 13 How. 57; Yorkes v. Peck, 17 id. 192; Demelt v. Leonard, 19 id. 182. § 418. [Amended, 1877.] Form of summons. The summons, exclusive of the title of the action and the subscription, must be substantially in the following form, the blanks being properly filled: To the above named defendant: You are hereby mmoned to answer the complaint in this action, and erve a copy of your answer on the plaintiff's attor within twenty days after the service of this sumexclusive of the day of service; and in case of failure to appear or answer, judgment will be against you by default, for the relief demanded mplaint. Dated |