Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Six years

- Action upon liability created by statute. brought is limited to six years. Code, § 91, subd. 1. A debt, in the form of a note, secured by a mortgage, is affected by two different statutes of limitation. An action upon the note may be barred by the statute of limitations while the remedy upon the mortgage remains unimpaired. Pratt v. Huggins, 29 Barb. 277; Heyer v. Pruyn, 7 Paige, 465; Thayer v. Mann, 19 Pick. 535; Baldwin v. Norton, 2 Conn. 163; Wiswell v. Baxter, 20 Wis. 680; Elkin v. Edwards, 8 Ga. 325.

In a suit against prior indorsers, by an indorser, compelled to pay the amount of a note, the six years will run from the payment of the money, and not from the time when the note fell due. Barker v. Cassidy, 16 Barb. 177. The remedy of the payee, against the maker of a note, under similar circumstances, is upon the note itself, and hence the above rule will not apply. Woodruff v. Moore, 8 Barb. 171. Where credit is given on a sale of goods, the statute begins to run from the expiration of that credit. Harden v. Palmer, 2 E. D. Smith, 172.

The statute commençes to run against the claim of an attorney for professional services, and for disbursements, whenever his services are so brought to an end, that an action may be maintained for them. Adams v. The Fort Plain Bank, 36 N. Y. (9 Tiff.) 255; S. C., 2 Trans. App. 234; reversing S. C., 23 How. 45.

But an attorney engaged upon a general retainer in the same matter may allow a portion of his disbursements or charges to overrun the six years without peril from the statute. Mygatt v. Willcox, 1 Lans. 55.

Where services in the management of a farm are performed for a series of years, without any express agreement as to the time or measure of compensation, no payments being made, the law, for the purpose of determining when the statute begins to run, will not imply an agreement that the payment shall be postponed until the termination of the employment, but will regard the hiring as from year to year, and the wages as payable at the same time. Davis v. Gorton, 16 N. Y. (2 Smith) 255.

The maker of a promissory note cannot recover back choses in action pledged by him as security for its payment, simply because an action upon such note is barred by the statute of limitations. Nothing short of actual payment or a tender will enable him to do so. Jones v Merchants' Bank of Albany, 6 Rob. 162.

Section 4. Action upon liability created by statute. An action

Trespass upon real property-Trover-Replevin.

upon a liability created by statute, other than a penalty or forfeiture, must be brought within six years. Code, § 91, subd. 2. A suit against a stockholder of a corporation, to charge him individually with a debt contracted by it, comes within the above provision. Corning v. McCullough, 1 N. Y. (1 Comst.) 47; Conklin v. Furman, 57 Barb. 484; 8 Abb. N. S. 161.

An action brought to charge a person as trustee of a corporation with the debt of the company, for a failure to file an annual report, pursuant to statute (Laws 1848, chapter 4), relating to manufacturing corporations, is an action for a penalty or forfeiture, and must be brought within three years. Merchants' Bank of New Haven v. Bliss, 1 Rob. 391; 35 N. Y. (8 Tiff.) 412. As to what acts subject to penalties in such cases, see Dabney v. Stevens, 40 How. 341; 10 Abb. N. S. 39; 2 Sweeny, 415; Johnson v. Hudson River R. R. Co., id 298.

Section 5. Actions for trespass upon real property. Under the Code, section 91, subdivision 3, all actions for trespass upon real property must be brought within six years.

Section 6. Actions of trover and replevin. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property, must be brought within six years. Code, § 91, subd. 4. And the date of the commission of the injury or offense complained of, governs the statutory time. Thus in trover, when the inquiry is at what time the statute commences to run, reference is had to the time of the conversion, and never to the time of demand and refusal. Kelsey v. Griswold, 6 Barb. 436.

In an action against assessors for illegally assessing a tax upon the plaintiff, the statutory time will begin to run when his property is taken by the collector for sale to satisfy the tax, and not from the time of making the assessment. Mygatt v. Washburn, 15 N. Y. (1 Smith) 316; Clark v. Norton, 3 Lans. 484.

An action against an agent for neglect to pay over moneys collected by him must be brought within six years, and the statute begins to run from the date of the collection, no previous demand being necessary. Hickok v. Hickok, 13 Barb. 632. This rule does not apply where goods are left to be sold on commission. In such case the owner has no cause of action for the value of such goods until demand made, and till such demand the statute will not commence to run. Baird v. Walker, 12 Barb. 298; Walden v. Crofts, 2 Abb. 301; 4 E. D. Smith, 490.

Injury to person or rights-Fraud-Accounts.

Section 7. Actions for injury to the person or rights of another other than contract rights. An action for criminal conversation, or other injury affecting the person or rights of another, not arising on contract, must be brought within six years. This subdivision includes all torts or injuries not elsewhere specially noticed, and is very comprehensive in its scope. Code, 91, subd. 5.

Section 8. Actions for relief on ground of fraud. The sixth subdivision of section 91 of the Code provides that "an action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery; the cause of action in such cases not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud, shall be brought within six years."

Under the Revised Statutes, a party had six years after discovery of a fraud upon him in which to bring his suit in equity although there was a concurrent remedy at law; but the above provision of the Code has restricted this rule, dating the time of limitation from the discovery of the fraud, to cases solely cognizable in equity, so that, if a party has a concurrent remedy at law, the action will be barred in six years from the commission of the fraud. Foot v. Farrington, 41 N. Y. (2 Hand) 164. See ante, 52, ch. 6, § 11.

Section 9. Actions for an accounting. Actions for accounting purely, in a case of mutual, open, and current accounts, where there have been reciprocal demands between the parties, and where, heretofore, a court of equity and a court of law would have had concurrent jurisdiction, must be brought within six years. Borst v. Corey, 15 N. Y. (1 Smith), 505; and the provision of section 95 of the Code, that "the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side" is applicable to all such cases. 2 Van. Sant. Eq. Pr. 170

Section 10. Action upon a current account. In an action to recover the balance due upon a mutual, open, and current account, the statute begins to run from the time of the last item proved in the account on either side, and the action must be brought within six years. Code, § 95; Borst v. Corey, 15 N. Y. (1 Smith)

505.

It is necessary, to constitute a mutual account, that there be items of account on both sides. Hallock v. Losee, 1 Sandf. 220,

What actions must be brought within three years.

To bring a case within the statute, the dealings must be direct and open between the parties. Thus, where a current account exists between parties, and one of them purchases from a third party an open account against the other without notice to or recognition of its validity by the latter, such purchased account does not become part of the current account, and is barred in six years from the time it accrued. Green v. Ames, 14 N. Y. (4 Kern.) 225.

Where payments are made upon work done under a special contract, such payments do not constitute items of reciprocal demands under this section. Peck v. New York and Liverpool U. S. Mail Steamship Co., 5 Bosw. 226. Payment of all the items but one under such a contract, and a refusal to pay that item does not operate as such a payment as will prevent the running of the statute as to the other items. Ib.

Property delivered at one time upon an implied contract, where there is no express contract, entitles the vendor to sue for the value as soon as the delivery is made; but it is not a case of mutual accounts, and the demand will be barred in six years from the time when the right of action accrued. Turner v. Martin, 4 Rob. 661.

Section 11. What actions must be brought within three years. a. Actions other than for an escape, against sheriff, coroner, or constable. An action against a coroner or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty, or against a sheriff, coroner, or constable, for the non-payment of money collected upon an execution, must be brought within three years. Code, § 92; Laws of 1871, ch. 733, § 2.

An omission to return an execution duly delivered for service is an omission of official duty, and a right of action accrues as soon as the time for such return expires. Peck v. Hurlburt, 46 Barb. 559.

A seizure and sale by a sheriff, of the property of a person, not the defendant in the execution, is an act in an official capacity. Dennison v. Plumb, 18 Barb. 89; Cumming v. Brown, 43 N. Y. (4 Hand) 514; People v. Schuyler, 4 Comst. 173; Coddington v. Carnley, 2 Hilt. 528.

A sheriff who is sued for not paying over money collected by him must show a clear defense for retaining it in his hands. Davy v. Field, 2 Keyes, 608.

What actions must be brought within two years-One year.

As to actions against sheriffs, see the important changes found under the limitation to one year. Post, § 13.

b. Action brought upon a statute for a penalty by the party aggrieved. An action upon a statute for a penalty, given to the party aggrieved, or to such party and the people of this State, except where the statute imposing it prescribes a different limitation, must be brought within three years after the cause of action accrued. Code, § 92, subd. 2; The Merchants' Bank of New Haven v. Bliss, 35 N. Y. (8 Tiff.) 412; 21 How. 365; 13 Abb. 225.

Section 12. What actions must be brought within two years: a. Actions for libel, slander, etc. Actions for libel, slander, assault, battery, or false imprisonment must be brought within two years from the time the cause of action accrued. Code, § 93, subd. 1. An action to recover damages for causing the death of a person must be brought within two years. Laws 1870, ch. 78, § 2; Laws 1849, ch. 256.

b. Action for forfeiture or penalty to people of the State. Actions upon a statute for a forfeiture or penalty to the people of this State, must be brought within two years. Code, § 93, subd. 2. The provision of the act of congress of 1841 (5 U. S. Stat. at Large, 446, § 8), limiting the assignee in bankruptcy to two years in which to bring his action for the recovery of real property held adversely to the bankrupt, only applies when the adverse claims existed while the property was in the hands of the bankrupt, and prior to the assignment; it does not apply to a cause of action arising in favor of such assignee after the assignment, for an injury to property or a disseisin of lands vested in him by the proceedings. Stevens v. Hauser, 39 N. Y. (12 Tiff.) 302; reversing S. C., 1 Rob. 50; 1 Abb. N. S. 391.

Section 13. What action must be brought within one year. An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process. Code, §94.

A late statute has made a material change in the law relating to the limitation of actions against sheriffs, and it is now provided as follows: "No action shall be brought against any sheriff upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, not including the non-payment of money collected upon an execution, unless the same shall be commenced within one year from the time when the cause of action shall

« ΠροηγούμενηΣυνέχεια »