Riley v. Corwin — 24 N.Y. Sup. Ct. 597

Majority

p. 597

ANN E. RILEY, as Executrix, etc., of EDWARD T. RILEY, Deceased, Respondent, v. WILLIAM S. CORWIN, Appellant.

Headnote

Statute of limitations — constitutes a distinct new defence — it cannot be first set up during a trial before a referee.

Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

The court at General Term said: “The plaintiff in this case was allowed, on the trial, by the referee, to add to his reply in answer to a counter-claim interposed; and in addition to his defences in the reply contained, to interpose the statute of limitations. This was error. On the trial a referee, under the Code of Procedure, has not such power. This seems to be settled by authority. It is a new defence. (Ford v. Ford, 53 Barb., 525 ; Sinclair v. Neill, 1 Hun, 80 ; Mitchell Bunn, 2 N. Y. [T. &. C.], Sup. Ct. Rep., 486 ; Josyln v. Josyln, 9 Hun, 388 ; Phillips v. Melville, 10 id., 211; Smith v. Bathbun, 13 id., 47; Boeder v. Sayre, 70 N. Y., 180 .)

“ The amount of the counter-claim having been ascertained and determined by the referee, however, a new trial may be avoided by deducting it from the judgment. Unless the plaintiff consent that this bo done a now trial is ordered, with costs to abide event. If done the judgment is affirmed for the balance, without costs to either party.”

Henry B. Howland, for the appellant. George II. Starr, for the respondent.

Opinion

Present — Brady, P. J., and Potter, J.

Judgment reversed, now trial ordered, costs to abide event;

p. 598

unless plaintiff consent to a deduction of the counter-claim from the judgment, in which event judgment affirmed, as so modified, without costs.