Where action abates by death of party.

A foreign corporation is a person out of the State within section 100, and cannot plead the statute. Olcott v. The Tioga Railroad Co., 20 N. Y. (6 Smith) 210; reversing S. C., 26 Barb. 147; Dart v. Farmers' Bank at Bridgeport, 27 id. 337; Mallory v. Tioga Railroad Co., 3 Keyes, 354; S. C., 1 Trans. App. 203; 5 Abb. N. S. 420; 36 How. 202. So far as the above provision of the statute relates to residence, a liberal construction has been given. A change of domicile is not necessary to constitute a party a non-resident; a material absence, as contra-distinguished from a temporary departure and speedy return, is sufficient. Harden v. Palmer, 2 E. D. Smith, 172; Gans v. Frank, 36 Barb. 320. The statute extends to non-residents as well as to residents who depart from and reside out of the State. Ford v. Babcock, 2 Sandf. 518; 7 N. Y. Leg. Obs. 270.

The operation of the statute is suspended as to a joint debtor during the time he is absent from the State, although his codebtor has remained within the State. Denny v. Smith, 18 N. Y. (4 Smith) 567; Cutler v. Wright, 22 id. (8 Smith) 472, 477 ; White's Bank of Buffalo v. Ward, 35 Barb. 637. The rule is the same in the case of one of two joint and several debtors. Bogert v. Vermilya, 10 N. Y. (6 Seld.) 447. See 10 Barb. 32; 1 Code R. N. S. 212.

Section 9. Where action abates by death of party. On the death of a party entitled to bring an action, where the cause of action survives, the time within which the action may be brought by his representatives, is extended for the term of one year from the death of the party, in addition to the time limited by the statute. Code, § 102. It is further provided by the above section, that, "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."

The provision of the Revised Statutes (2 R. S. 448, § 8), that the term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of an action against his executors or administrators, remains in full force and effect, notwithstanding the provisions of the above section of the Code. Scovil v. Scovil, 45 Barb. 517; S.C., 30 How. 246. See Penny v. Brice, 18 C. B. N.

Death of party- Where action stayed-Fraud.

S. 393. In case of the death of a debtor while residing out of the State, if he was so absent at the time the cause of action accrued, the statute commences running only from the time of granting letters of administration in this State. Davis v. Garr, 6 N. Y. (2 Seld.) 124; Olcott v. Tioga Railroad Co., 20 N.Y. ( 6 Smith) 210, 225; post, 61, § 15, a.

But where a resident of this State, indebted by simple contract, goes out of the State after such debt becomes due, and dies before returning thereto, the statute will be a bar to an action. against his administrator, after six years from the time when the debt became due, excluding the time from the departure of the debtor from the State, until eighteen months after his death. Chistophers v. Garr, 6 N. Y. (2 Seld.) 61.

Where one obtains any property of a deceased person the statute commences to run from the granting of letters of administration, and not from the time of the receipt of the property. Bucklin v. Ford, 5 Barb. 393.

When the com

Section 10. Where action has been stayed. mencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. Code, § 105.

Under the provisions of this section, a plaintiff need not plead specially that an injunction has been served on him. It is sufficient if he had notice of it. Berrien v. Wright, 26 Barb. 208.

The time during which an injunction is operative must be deducted when the statute of limitations is interposed as a defense. Sands v. Campbell, 31 N. Y. (4 Tiff.) 345.

Where an injunction does not prevent a party from bringing an action to enforce his rights, the fact that the injunction restrained him from doing other acts will not prevent the statute from becoming a bar. McQueen v. Babcock, 41 Barb. 237; S. C. affirmed, 33 How. 617(n).

Section 11. In actions based on fraud. In "an action for relief on the ground of fraud, in cases which were heretofore solely cognizable by the court of chancery," the operation of the statute will be suspended, " until the discovery by the aggrieved party of the facts constituting the fraud." Code, § 91, subd. 6; Gates v. Andrews, 37 N. Y. (10 Tiff.) 657; S. C., 5 Trans. App. 176.

But the Code restricts the rule to cases solely cognizable in equity, and if the fraud is such that the party has a concurrent remedy at law or in equity, the action must be commenced within six years from the commission of the fraud, irrespective of the question when the fraud was discovered by the injured party. Foote v. Farrington, 41 N. Y. (2 Hand) 164. See Mayne v. Griswold, 3 Sandf. 463; 9 N. Y. Leg. Obs. 25.

Section 12. In suits by aliens. The operation of the statute is not suspended in favor of an alien subject or citizen of a country at war with the United States, during the continuance of the war. Code, $103.

A citizen of another State who is engaged in war with the United States, is such an enemy as to be without remedy in our courts until hostilities are ended. His claim may then be revived and recovered. Bonneau v. Dinsmore, 23 How. 397; Sanderson v. Morgan, 39 N. Y. (12 Tiff.) 231. The time during which the courts were closed by the civil war in the rebellious States is to be excluded from computation.. Hanger v. Abbott, 6 Wall. 532; United States v. Wiley, 11 id. 508.

Section 13. Actions against officers of corporations. Actions against officers of corporations to recover a penalty or forfeiture imposed, or to enforce a liability created by law, are not affected by the provisions of the Code under Title II, but all such actions must be brought within six years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created. Code, § 109.

ARTICLE II.

ACTIONS FOR THE RECOVERY OF REAL PROPERTY.

Section 1. When the people will not sue. The people of the State will not sue in respect to any right or title to real property that shall not have accrued within forty years before any action or other proceeding for the same shall be commenced, or unless the people, or those from whom they claim, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years. Code, § 75.

Under this provision of the Code it has been held, that an action by the people to recover lands is not barred by the statute of limitations, unless it be shown that there has been an adverse

When action cannot be brought by grantee of State.

possession of forty years before the commencement of the suit. And the people, it seems, are deemed to have received the rents and profits so as to prevent the running of the statutes, unless the lands are held in hostility to their title, even though the lands be wild and uncultivated. People v. Arnold, 4 N. Y. (4 Comst.) 508; People v. Rector, etc., of Trinity Church, 22 id. (8 Smith) 44.

Section 2. When action cannot be brought by grantee of State. No action can be brought by a grantee of the State, unless the same might have been commenced by the people, in case such patent or grant had not been issued or made. Code, § 76.

Section 3. Actions against grantee of void grant. Actions against a grantee of a void grant may be brought by the people of the State, or by their subsequent grantee of the same premises, within twenty years after the said grant shall be declared void by a competent court, but not after that period. Code, § 77.

Section 4. Seisin within twenty years, when necessary; in action for recovery of real property. In an action for the recovery of real property it must appear, under section 78 of the Code, that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.

Section 5. In actions or defenses founded upon title to or rents of real property. In actions or defenses founded upon title to or rents of real property, the person prosecuting the action or making the defense must show that the ancestor, predecessor or grantor of such person was seized or possessed of the premises in question within twenty years before the committing of the act, in respect to which such action is prosecuted or defense made. Code, § 79.

A party bringing an action or making a defense founded upon the title to real property, or his ancestor, etc., must have had such a seisin or possession as carries with it the title to the premises, or a right of entry which will authorize an action of ejectment. Tyler v. Heidorn, 46 Barb. 439; Lyon v. Chase, 51 id. 13, 15; Van Rensselaer v. Vickery, 3 Lans. 57.

Section 6. Entry or right of entry. No entry upon real estate shall be deemed sufficient or valid as a claim, unless an action be commenced thereupon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued. Code, § 80.

ACTIONS OTHER THAN THOSE FOR THE RECOVERY OF REAL PROPERTY.

Section 1. Action upon a judgment or decree. The period prescribed by the Code within which an action may be brought upon a judgment or decree of any court of the United States, or within any State or Territory within the United States, is twenty years. Code, § 90. The above section includes judgments in the marine and justices' courts. Conger v. Vandewater, 1 Abb. N. S. 126; Delavan v. Florence, 9 Abb. 277, note. It also includes the decrees of a surrogate. Paff v. Kinney, 1 Bradf. (Sur. R.) 4. After the lapse of twenty years from the docketing of a judgment it can be revived only in the manner prescribed by statute. It is not competent for the parties to revive it by an order entered on a stipulation by consent. Thompson v. Jenks, 2 Abb. N. S. 229. The presumption of the payment of a judgment obtained before the Revised Statutes took effect, may be rebutted by showing a sheriff's return of an execution partly unsatisfied. Henderson v. Cairns, 14 Barb. 15. See, also, Waddell's Administrator v. Elmendorf's Administrator, 10 N. Y. (6 Seld.) 170.

Section 2. Action upon a sealed instrument. An action upon a sealed instrument, such as a bond, etc., must be brought within twenty years. Code, § 90. This rule applies only where the cause of action arises out of a breach of the conditions of the instrument under seal, and not where such instrument merely transfers a right of action on a totally distinct and independent agreement, express or implied, and where the breach of such latter agreement gives the right of action. Thus, where an action was brought to recover the price of property conveyed at an implied valuation, the action was held to be barred by the statute after the lapse of six years, though the assignment of the grant was by instrument under seal. Coleman v. Second Avenue Railroad Co., 48 Barb. 371; affirmed, 38 N. Y. (11 Tiff.) 201; S. C., 6 Trans. App. 146; 35 How. 643 (n.)

Section 3. What actions must be brought within six years; action upon contract, obligation or liability. Under this head are included all those numerous cases in which actions may be brought upon contract, obligation or liability, express or implied, excepting sealed instruments, and the time within which they may be