TITLE II. Actions other than for the recovery of real property. Bec. 376. When satisfaction of judgment presumed. 377. Effect of return of execution. 378. How presumption raised. 379. Limitation of action to redeem from a mortgage. 380. Other periods of limitation. 381. Within twenty years. 382. Within six years. 383. Within three years. 384. Within two years. 385. Within one year. 386. When cause of action accrues on a current account. 387. Action for penalty, etc., by any person who will sue. 388. Actions not before provided for. 389. Actions by the people subject to the same limitations. 390. Actions against a non-resident, upon a demand barred by the law of his residence. 391. When person liable, etc., dies without the State. 392. Cause of action accruing between the death of a testator or is testate, and the grant of letters. 393. No limitation of action on bank notes, etc. 394. Action against directors, etc., of banks. 395. Acknowledgment of new promise must be in writing. 396. Exceptions, as to persons under disabilities. 397. Defence or counterclaim. § 376. [Am'd, 1877, 1894.] When satisfaction of judgment presumed. A final judgment or decree for a sum of money, or directing the payment of a sum of money, heretofore rendered in a surrogate's court of the state, or heretofore or hereafter rendered, in a court of record within the United States, or elsewhere, or hereafter docketed pursuant to the provisions of section 3017 of this act, is presumed to be paid and satisfied, after the expiration of twenty years from the time, when the party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive, except as against a person who, within twenty years from that time, makes a payment or acknowledges an indebtedness of some part of the amount recovered by the judgment or decree, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing, and signed by the person to be charged thereby. From Co. Proc., § 90, subd. 1. Am'd by L. 1877, c. 416; L. 1894, c. 307. 377. Effect of return of execution. If the proof of payment, under the last section, consists of the return of an execution partly satisfied, the adverse party may show, in full avoidance of the effect thereof, that the alleged partial satisfaction did not proceed from a payment made, or a sale of property claimed, by him or by a person whom he repre sents. New. Suggested by Henderson v. Cairns, 14 Barb. 15. $378. How presumption raised. A person may avail himself of the presumption created by the last section but one, under an allegation that the action was not commenced, or that the proceeding was not taken, within the time therein limited. See 3413, post. § 879. Limitation of action to redeem from a mortgage. An action to redeem real property from a mortgage, with or without an account of rents and profits, may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises, for twenty years after the breach of a condition of the mortgage, or the non-fulfilment of a covenant therein contained. New. 880. Other periods of limitation. The following actions must be commenced within the following periods, after the cause of action has accrued. From Co. Proc., §§ 74, 89. § 381. [Am'd, 1877.] Within twenty years. Within twenty years: An action upon a sealed instrument. But where the action is brought for breach of a covenant of seizin, or against incumbrances, the cause of action is, for the purposes of this section only, deemed to have accrued upon an eviction, and not before. From Id., part of § 90. Am'd by L. 1877, c. 416. § 882. [Am'd, 1877, 1894.] Within six years. Within six years: 1. An action upon a contract obligation or liability, express or implied; except a judgment or sealed instrument. 2. An action to recover upon a liability created by statute; except a penalty or forfeiture. 3. An action to recover damages for an injury to property, or a personal injury; except in a case where a different period is expressly prescribed in this chapter. 4. An action to recover a chattel. 5. An action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case which, on the thirtyfirst day of December, 1846, was cognizable by the court of chancery. The cause of action, in such a case, is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. 6. An action to establish a will. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued, until the discovery, by the plaintiff, or the person under whom he claims, of the facts upon which its validity depends. 7. An action upon a judgment or decree, rendered in a court not of record, except where a transcript shall be filed, pursuant to section 3017 of this act, and, also, except a decree heretofore rendered in a surrogate's court of the State. The cause of action, in such a case, is deemed to have accrued when final judgment was rendered. From Co. Proc., § 91; 2 R. S. 295. Am'd by L. 1877, c. 416 and c. 422; L. 1894, c. 307 (in effect April 17, 1894). § 383. [Am'd, 1877.] Within three years. Within three years: 1. An action against a sheriff, coroner, constable, or other offcer, for the non-payment of money collected upon an execution. 2. An action against a constable, upon any other liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except an escape. t 3. An action upon a statute, for a penalty or forfeiture, where the action is given to the person aggrieved, or to that person and the people of the State, except where the statute imposing it prescribes a different limitation. 4. An action against an executor, administrator, or receiver, or against the trustee of an insolvent debtor, appointed, as prescribed by law, in a special proceeding instituted in a court or before a judge, brought to recover a chattel, or damages for taking, detaining, or injuring personal property, by the defendant, or the person whom he represents. 5. An action to recover damages for a personal injury, resulting from negligence. From Co. Proc., § 92. Am'd by L. 1877, c. 416. ¡ 384. [Am'd, 1896, 1900.] Within two years. Within two years: 1. An action to recover damages for libel, slander, assault, battery, seduction, criminal conversation, false imprisonment, malicious prosecution or malpractice. 2. An action upon a statute, for a forfeiture or penalty to the From Co. Proc., § 93. Am'd by L. 1896, c. 335; L. 1900, c. 117 (in effect j385. Within one year. Within one year: 1. An action against a sheriff or coroner, upon a liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except the non-payment of money collected upon an execution. 2. An action against any other officer, for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate. From Co. Proc., § 94. 386. When cause of action accrues on a current account. In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item, proved in the account on either side. From Id., § 95. } 387. Action for penalty, etc., by any person who will e. 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 attorney-general, or the district-attorney of the county where the offence was committed. From 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, PLEAD § 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. From Id., § 98. § 390. [Am'd, 1916.] 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, provided that if the limitation of the time fixed by the laws of his residence for bringing such action be less than the time fixed by the laws of this State for a like action, the limitation fixed by the laws of this State shall apply. This section shall not apply to a case in which a person is entitled, when this section as amended takes effect, to commence such action, where he commences the same before the expiration of six months after this section as amended takes effect; in which case the provisions of law applicable thereto immediately before this section as amended takes effect shall continue to be so applicable, notwithstanding the repeal thereof. New. Am'd by L. 1916, c. 536 (in effect May 15, 1916). § 390a. [Added, 1902.] Action upon cause of action arising in another state or country and barred by its laws. Where a cause of action arises outside of this state, an action cannot be brought, in a court of this state, to enforce said cause of action, after the expiration of the time limited by the laws of the state or country where the cause of action arose, for bringing an action upon said cause of action, except where the cause of action originally accrued in favor of a resident of this State. Nothing in this act contained shall affect any pending action or proceeding. New. Added by L. 1902, c. 193 (in effect Sept. 1, 1902). § 391. [Am'd, 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. Am'd by L. 1877, c. 416. § 392. [Am'd, 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 But where an action after the death of the testator or intestate. 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 criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. New. Am'd by L. 1877, c. 416. § 393. No limitation of action on bank notes, etc. 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. From Co. Proc., § 108. § 394. [Am'd, 1877, 1897.] Action against directors, etc., of banks. This chapter does not affect an action against a director or stockholder of a moneyed corporation, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by the common law or by statute; but such an action must be brought within three years after the cause of action has accrued. From Co. Proc., § 109. Am'd by L. 1877, c. 416; L. 1897, c. 281 (in effect Sept. 1, 1897). § 395. Acknowledgment or new promise must be in writing. An acknowledgment or promise 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. From Co. Proc., § 110. § 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 a 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, 2. Insane; or, 3. Imprisoned on a criminal charge, or in execution upon 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 limited in this title for commencing the action; except that the time so limited cannot be extended more than five years by any such disability, except infancy; or in any case, more than one year after the disability ceases. From Id., § 101. § 397. Defence or counterclaim. A cause of action, upon which an action cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim. |