Majority
p. 261Ephraim Howe, Resp’t, v. James P. Welch, App’lt. (New York Court of Common Pleas, General Term, Filed February 7, 1887.)
Headnote
Practice—Election of defenses—Statute of limitations.The defendant having elected to re.y solely upon one defence will not, when beaten on this ground, be allowed to change his position and avail himself of another ground which he expressly waived.
Appeal from a judgment of the city court rendered at general term reversing a judgment entered upon the direction of the trial judge, dismissing the plaintiff’s complaint with costs, and directing judgment in favor of the defendant.
Stickney & Shepard, for resp’t; Abbott Bros., for app’lt.
On the trial of the action in the court below, defendant by his counsel stated that he would rely solely on the statute of limitations of the state of Iowa, for his defense.
The action was tried and judgment rendered in reliance on this statement. When beaten on this ground, we do not think the defendant should be allowed to change his position and seek to avail himself of another ground which might have been taken on the trial, but which he expressly waived in the manner above stated and that he is now too late to ask a construction of section 390 of the Code.
The motion to go to the court of appeals is therefore denied, without costs.