Dezengremel v. Dezengremel

31 N.Y. Sup. Ct. 457

• Court: New York Supreme Court
• Decided: April 15, 1881
• Status: Published

Opinion

Hardin, J.:

The answer contains no defense of adverse possession; it does not state that the action was not commenced within the time limited by law.

Section 413 of the Code of Civil Procedure is as follows: “ The objection, that the action was not commenced within the time limited, can be taken only by answer.” * * *

This provision is like the one in section 74 of the Code of Procedure.

The defendant cannot have the benefit of a defense of a statute of limitations not taken by answer. (Sands v. St. John, 36 Barb., 628; Butler v. Mason, 16 How., 546; Lefferts v. Hollister, 10 id., 383.) Nor should we amend the answer so as to insert the defense. (Williams v. Willis, 15 Abbott [N. S.], 11.)

We cannot determine that the defect in the answer was waived at the trial, nor that “ adverse possession was one of the prominent issues litigated on the trial and upon which the referee was called upon to find and decide,” as no case is made and presented to us.

The appeal is taken, from the judgment, and only the judgment roll and the exception to the referee’s report are brought up.

Nor is this a case where the answer is defective inform, and such defect is cured by the trial. (De Grove v. M. Ins. Co., 61 N. Y., 605; sections 721, 722, 723, Code of Civil Procedure.)

We must reverse. Judgment reversed anda new trial ordered before another referee, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered before another referee, costs to abide event.