Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Relation of landlord and

tenant, as

adverse

posses

judgment or decree, land is deemed to have been possessed and
occupied in either of the following cases, and no others:

1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.

Code Pro., § 85. See Wait's Code,
101. A lot inclosed on one side by a
highway, on two sides by fences, and
on the remaining side by a distinct
line of marked trees from corner stake
to corner stake, is not protected by a
substantial inclosure within the mean-
ing of subd. 1, of this section. Pope

v. Hanmer, 8 Hun, 265; and the occasional use of a lot as a pasture, and taking from it wood and timber for shingles and staves, do not show it to have been usually cultivated or improved, within the meaning_of subd. 2. Id. See, also, Yates v. Van DeBogert, 56 N. Y. (11 Sick.) 527.

§ 373. Where the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the affecting possession of the landlord, until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years after the last payment of rent; notwithstanding that the tenant has acquired another title, or has claimed to hold adversely to his landlord. But this presumption shall not be made, after the periods prescribed in this section.

sion.

Right not affected by de

scent cast.

Certain disabili

ties ex

cluded

to com

mence

Code Pro., § 86. See Wait's Code, (8 Sick.) 287; Bedell v. Shaw, 59 N. Y. 101, 102; Sands v. Hughes 53 N. Y. (14 Sick.) 46.

§ 374. The right of a person to the possession of real property is not impaired or affected, by a descent being cast, in consequence of the death of a person in possession of the property.

Code Pro., § 87.

§ 375. If a person, who might maintain an action to recover real property, or the possession thereof, or make an entry, or inter

from time pose a defence or counterclaim, founded on the title to real property, or to rents or services out of the same, is, when his title first descends, or his cause of action or right of entry first accrues, either: 1. Within the age of twenty-one years; or,

action.

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, or making the entry, or interposing the defence or counterclaim; except that the time so limited cannot be extended more than ten years, after the disability ceases, or after the death of the person so disabled.

Code Pro., § 88, amended. See 1 Wait's Pr. 50; Wait's Code, 102.

TITLE IL

Actions other than for the recovery of real property.

SEC. 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.

892. Cause of action accruing between the death of a testator or intestate, and the grant of letters.

393. No limitation of action on bank notes, etc.

394. Action against directors, etc., of banks.

395. Acknowledgment or new promise must be in writing.

396. Exceptions, as to persons under disabilities.

397. Defence or counterclaim.

satisfac

pre

sumed.

§ 376. [Amended, 1877.] A final judgment or decree for a sum when of money, or directing the payment of a sum of money, heretofore tion of rendered in a surrogate's court of the State, or heretofore or hereafter judgment rendered, in a court of record within the United States, or elsewhere, 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.

Substituted for subd. 1, § 90, Code Pr. 55; Peters v. Delaplaine, 49 N. Y. Pro. See Wait's Code, 103; 1 Wait's (4 Sick.) 862, 370.

§ 377. If the proof of payment, under the last section, consists Effect of of the return of an execution partly satisfied, the adverse party may execu

return of ехеси

tion.

How pre

sumption raised.

Limitation of action to redeem from a

mortgage.

Other periods of limitation.

Within twenty years.

Within six years.

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 represents.

New provision, suggested by the case of Henderson v. Cairns, 14 Barb. 15.

§ 378. 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.

New provision.

§ 379. 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. See Demarest v. Wynkoop, 3 Johns. Ch. 129; Hubbell v. Sibley, 50 N. Y. (5 Sick.) 468.

§ 380. The following actions must be commenced within the following periods, after the cause of action has accrued.

See Code Pro., §§ 74 and 89.

§ 381. [Amended, 1877.] 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.

Code Pro., § 90, subd. 2, amended tence, which is new. See Wait's by the addition of the concluding sen- Code, 103; 1 Wait's Pr. 55.

[ocr errors]

§ 382. [Amended, 1877, ch. 416 and 422.] 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 thirty-first 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 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.

Code Pro., § 91, amended. Subd. 6 is new, and subd. 7 is from 2. R. S. 295, 18, subd. 2, amended. See 1 Wait's Pr. 55-59; Wait's Code, 103, 104.

The provision which requires a discovery by the aggrieved party of the facts constituting the fraud (see subd. 5). within six years previous to action, does not require personal knowledge of the fact. If he has made a discovery of the essential facts by an attorney employed for that purpose, more than six years before action, the notice or knowledge thus obtained by the attorney is sufficient to charge his client.

Taft v. Wright, 47 How. 1; S. C., 2
N. Y. Sup. Ct. (T. & C.) 614; S. C.
affirmed, 59 N. Y. (14 Sick.) 656.
And upon the plaintiff is cast the bur-
den of proving that the fraud was not
discovered until within six years of
the commencement of the action, if he
relies upon that fact. Baldwin v.
Martin, 14 Abb. N. S. 9; S. C., 3
Jones & Sp. 85; Erickson v. Quinn, 3
Lans. 299; S. C. modified, 47 N. Y.
(2 Sick.) 410. See Town of Venice v.
Breed, 65 Barb. 597, 604; S. C., 1 N. Y.
Sup. Ct. (T. & C.) 130; Northrop v.
Hill, 61 Barb. 136; 8. C. affirmed, 57
N. Y. (12 Sick.) 351.

Within

three

§ 383. [Amended, 1877.] Within three years: 1. An action against a sheriff, coroner, constable, or other officer, years. 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.

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.

Within

two years.

Within

one year.

When

cause of action accrues

on a current account.

Action for pen

by any

person

who will sue.

5. An action to recover damages for a personal injury, resulting from negligence.

Substituted for § 92, Code Pro. And see Laws of 1871, ch. 733, § 2; 9 Edm. St. 197. The last two subdivisions (4 and 5) are new. See 1 Wait's Pr. 59, 60; Wait's Code, 104, 105.

The statute requiring manufacturing corporations to make and publish an annual report of their financial condition (see Laws of 1848, ch. 40; 3 Edm. St. 735, § 12), has uniformly

§ 384. Within two years:

been held to create a liability, which is in the nature of a penalty, upon a failure to do so, and therefore within the limitations of actions for penalties and forfeitures. Nimmons v. Tappan, 2 Sweeny, 652; Wiles v. Suydam, 64 N. Y. (19 Sick.) 173; Jones v. Barlow, 6 Jones & Sp. 142; 8. C. affirmed, 62 N. Y. (17 Sick.) 202.

1. An action to recover damages for libel, slander, assault, battery, or false imprisonment.

2. An action upon a statute, for a forfeiture or penalty to the people of the State.

Code Pro., § 93, amended. See 1 Wait's Pr. 60; Wait's Code, 105.

§ 385. 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.

Substituted for § 94, Code Pro. See 1 Wait's Pr. 60.

§ 386. 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.

Code Pro., § 95. See 1 Wait's Pr. 58; Wait's Code, 105.

§ 387. An action upon a statute for a penalty or forfeiture, given alty, etc., 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 districtattorney of the county where the offence was committed.

Code Pro., § 96. See 1 Wait's Pr. 61; Cotton v. Maurer, 5 N. Y. Sup. Ct. (T. & C.) 575; S. C., 3 Hun, 552.

« ΠροηγούμενηΣυνέχεια »