Genet v. Tallmadge

2 Edm. Sel. Cas. 318

• Court: New York Supreme Court
• Decided: July 1, 1851
• Status: Published

Opinion

Edmonds, J.:

From the complaint itself it appears that this is a stale demand of twenty or thirty years’ standing, and there is nothing averred in the complaint to take the case out of the statute of limitations, except the fact that within ten years the defendants had acted in their representative capacity by bringing a suit.

The mere fact of bringing a suit without any averment that by means of it they had received any money is not of itself enough to avoid the statute.

And the case is therefore presented to me in the bald aspect, °as shown by the complaint itself, not only of a stale demand which, under the practice before the Bevised Statutes, would not be enforced, but as one which is barred by the limitations prescribed in the Bevised Statutes.

In such a case it was always competent in equity to raise the question on demurrer.

It is so raised here, and there being no doubt that the statute of limitation is a bar, the demurrer must be allowed.