La Barr v. La Barr

278 A.D. 995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1951
• Status: Published

Opinion

Appeal from an order of the Supreme Court made at Special Term in Ulster County, denying appellant’s motion for an order to dismiss the second cause of action in the amended complaint. On its face the second cause of action pleaded is sufficient (Averbuch v. Averbuch, 270 App. Div. 116). In fraud cases the Statute of Limitations does not begin to run until the fraud is discovered. There is nothing in the second cause of action to indicate when the plaintiff may have discovered the fraud she alleges. She was not obliged, however, to negative the Statute of Limitations before the issue was raised. Since the alleged defect does not appear upon the face of her complaint defendant’s bare motion to dismiss was not sufficient, although technically such a motion may be made under section 30 of the Civil Practice Act. In view of the structure of the pleading the issue can only be raised in this ease by setting it forth as an affirmative defense. Order unanimously affirmed, with $10 costs and disbursements. Present — Foster, P. J., Heffernan, Deyo, Bergan and Coon, JJ.