PART III. Exception where de fendant is out of the state. Exception as to An attempt to commence an action, is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county, in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff' or other officer of the county, in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt must be followed by the first publication of the summons, or the service thereof within sixty days. As amended by Laws of 1851, ch. 479. 19 How. P. R., 54; 17 How. P. R., 478; 8 How. P. R., 500; 10 Ab., 473; 9 Ab., 64. $ 100. If, when the cause of action shall accrue against any person, he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. As amended by Laws of 1851, ch. 479. 10 N. Y., 102; 26 B., 159. S 101. If a person entitled to bring an action mentioned in sons under the last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of action accrued, either: disabilities. Provision where per limitation expires. 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court, for a term less than his natural life; or 4. A married woman; The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than five years by any such disability, except infancy, nor can it be so extended in any case longer than one year after the disability ceases. Amended by Laws of 1851, ch. 479; 1852, ch. 392. $ 102. If a person entitled to bring an action die before the itled expiration of the time limited for the commencement thereof, dies before and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and within one year from his death. If a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrator, after the expiration of that time, and within one year after the issuing of letters testamentary, or of administration. 6 N. Y., 134; 26 B., 216; 29 B., 27; 14 W., 283. CHAP. XI. by aliens, $103. When a person shall be an alien subject or citizen In actions of a country at war with the United States, the time of the time of continuance of the war shall not be part of the period limited deducted. for the commencement of the action. 23 B., 420; 21 B., 227. war to be where has been S104. If an action shall be commenced within the time Provisions prescribed therefor, and a judgment therein (for the plaintiff) judgment be reversed on appeal, the plaintiff, or if he die and the cause reversed. of action survive, his heirs or representatives may commence a new action within one year after the reversal. See Laws of 1863, ch. 392. stay by in 3105. When the commencement of an action shall be Time of stayed by injunction, or statutory prohibition, the time of junction or the continuance of the injunction, or prohibition, shall not be prohibition part of the time limited, for the commencement of the action. to be de 3 How. P. R., 325. ducted. $106. No person shall avail himself of a disability, unless Disability it existed when his right of action accrued. must exist when right accrued. not where § 107. When two or more disabilities shall co-exist, at the of action time the right of action accrues, the limitation shall attach until they all be removed. 3 How. P. R., 290, 350. several disabilities, all must be removed. the not applica by S108. This title shall not affect actions to enforce payment of bills, notes or other evidences of debt issued moneyed corporations, or issued or put in circulation as money. 6 N. Y., 62: 3 How. P. R., 281. This title ble to bills, orations &c., of cor or to bank notes. actions of moneyed $109. This title shall not affect actions against directors Nor to or stockholders of a moneyed corporation, or banking asso- against diciations, to recover a penalty or forfeiture imposed, or to rectors, &c. enforce a liability created by law; but such actions must be corpora brought within six years after the discovery, by the aggrieved banking as party, of the facts upon which the penalty or forfeiture Limitation attached, or the liability was created. tions or sociations. in such cases pre Acknow. promise $110. No acknowledgment or promise shall be sufficient scribed. evidence of a new or continuing contract, whereby to take ledgment the case out of the operation of this title, unless the same be or new contained in some writing signed by the party to be charged must be thereby; but this section shall not alter the effect of any writing. payment of principal or interest. 18 N. Y., 565; 12 N. Y., 639; 2 N. Y., 527; 21 B., 449; 20 B., 35; 15 2 E. D. S., 116; 1 Hilt., 545. made in PART IIL Action to be in the name of real party in interest. When ac TITLE III. OF THE PARTIES TO CIVIL ACTIONS. SEC. 111. Action to be in the name of the real party in interest. 112. Assignment of a thing in action not to prejudice a defense. 113. Executor or trustee may sue without the person beneficially interested. 115. Infant to appear by guardian. 116. Guardian, how appointed. 117. Who may be joined as plaintiffs. 118. Who may be joined as defendants. 119. Parties united in interest, when to be joined. When one or more may sue or 120. Plaintiff may sue in one action the different parties to commercial paper. 122. Court when to decide controversy, or to order other parties to be brought in. S 111. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen, but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. But an action may be maintained by a grantee maintained of land in the name of a grantor, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision. Amended by Laws of 1851, ch. 479; 1862, ch. 460. tion may be by grantee of land in name of grantor. Assignment of a prejudice a 22 N. Y., 392, 562; 20 N. Y., 362; 18 N. Y., 54, 127; 16 N. Y., 420; 13 $112. In the case of an assignment of a thing in action, thing in ac- the action by the assignee shall be without prejudice to any otta set-off or other defense existing at the time of or before notice defense. of the assignment; but this section shall not apply to a negotiable promissory note or bill of. exchange, transferred in good faith, and upon good consideration, before due. Executor, &c., or trustee, may sue without persons 16 N. Y., 420; 9 N. Y., 212; 29 B., 387; 27 B., 80; 22 B., 335; 21 B., 281; 18 B., 512; 13 B., 233; 7 B., 207; 13 How. P. R., 84. S113. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within interested the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. beneficially When a married As amended by Laws of 1851, ch. 479. 22 N. Y., 392, 562; 11 N. Y., 391; 9 N. Y., 179, 212; 25 B., 396; 23 Ab., $114. When a married woman is a party her husband woman is a must be joined with her, except that party. 1. When the action concerns her separate property, she may sue alone; 2. When the action is between herself and her husband, she may sue or be sued alone, and in no case need she prosecute or defend by a guardian or next friend. Amended by Laws of 1851, ch. 479; 1857, ch. 723. 23 N. Y., 529; 16 N. Y., 73; 31 B., 128, 322; 18 B., 150; 12 B., 19; 18 CHAP. XI. appear by $ 115. When an infant is a party, he must appear by guar- Infant to dian, who may be appointed by the court in which the action guardian. is prosecuted, or by a judge thereof, or a county judge. 32 B., 49; 13 How. P. R., 413; How. P. R., 331; 11 Ab., 455; 10 Ab., Guardian how ap § 116. The guardian shall be appointed as follows: 1. When the infant is plaintiff, upon the application of the pointed. infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one; if he has none, then to the person with whom such infant resides; sure of 2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this state; if he has none, then to the infant himself, if over fourteen years of age and within the state; or if under that age and within the state, to the person with whom such infant resides. And in actions Partition of real properfor the partition of real property, or for the foreclosure of a ty, foreclomortgage or other instrument, when an infant defendant mortgages, resides out of this state, the plaintiff may apply to the court &c. in which the action is pending, at any special term thereof, and will be entitled to an order, designating some suitable person to be the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said order specified, shall procure to be appointed a guardian for the said infant. And the court shall give special directions in the order, for the manner of the service thereof, which may be upon the infant himself, or by service upon any relation or person with whom the infant resides, and either by mail or personally upon the person so served. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1862, ch. 460; 1863, 32 B., 49; 31 B., 309; 28 B., 302; 11 Ab., 456; 10 Ab., 310, 317, 41; PART III Who may $117. All persons having an interest in the subject of the be joined as action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. plaintiffs. Who may defendants. 29 B., 388; 22 B., 365, 601; 16 B., 258, 292, 325; 8 B., 656; 8 How. P. R., 457, 518; 2 Ab., 14, 15; 1 Ab., 138. S 118. Any person may be made a defendant, who has or be joined as claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein. Parties united in interest joined. 23 N. Y., 269; 12 N. Y., 583; 29 B., 388; 24 B., 250; 22 B., 366, 601; 20 B., 384; 18 B., 594; 12 B., 353; 9 B., 296; 8 B., 656; 22 How. P. R., 354; 21 How. P. R., 33; 20 How. P. R., 377; 10 How. P. R., 508; 8 How. P. R., 389, 518; 6 How. P. R., 460; 13 Ab., 458; 7 Ab., 261; 2 Ab., 15; 1 Ab., 45, 138. $119. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the when to be consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole. When one or more may sue or defend for the whole. Plaintiff sue in one action different 23 N. Y., 327; 32 B., 588; 29 B., 132; 24 B., 250; 22 B., 601; 19 B., 527; 12 B., 19; 11 B., 518; 8 B., 656, 666; 21 How. P. R., 319; 17 How. P. R., 78; 8 How. P. R., 518; 13 Ab., 123, 146; 10 Ab., 233; 2 Ab., 453. $120. Persons severally liable upon the same obligation or mayan instrument, including the parties to bills of exchange and promissory notes may, all or any of them, be included in the same action, at the option of the plaintiff. parties to commer cial paper. Actions not to abate by 23 N. Y., 287; 10 N. Y., 317; 23 B., 443; 16 B., 184, 291; 8 B., 656; 20 How. P. R., 72; 11 How. P. R., 570; 10 Ab., 117; 3 Ab., 308; 4 E. D. S., 379. S 121. No action shall abate by the death, marriage or other death, &c. disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. After a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. At any time after the death, marriage, or other disability of the party plaintiff, the court in which an action is or other dis pending, upon notice to such persons as it may direct, and Proceed ings in case of death, marriage, ability of parties. upon application of any person aggrieved, may, in its discre |