Rosner v. Globe Valve Corp.

196 Misc. 409, 92 N.Y.S.2d 343, 1949 N.Y. Misc. LEXIS 2824

Opinion

Hofstadter, J.

Motion for judgment on the pleadings sustaining the defenses of the Statute of Limitations as to the first and second counterclaims is denied, without prejudice to renewal in the event that the defendant hereafter is ordered to plead to the defenses and so pleads. The counterclaims are for slander spoken in June, 1947; the counterclaims were first- asserted on July 26, 1948, more than a year later, and hence the plaintiff in his reply pleaded the bar of the one-year Statute of Limitations (Civ. Prac, Act, § 51). The plaintiff has moved for judgment on the pleadings on the defenses so interposed by him. Section 243 of the Civil Practice Act provides that£ 1 * * * An allegation of new matter in the answer to which a reply is not required, or of new matter in a reply is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires.” The defendant is thus still free, as the pleadings now stand, to establish that the counterclaims have not been outlawed. The motion for judgment on the pleadings must, therefore, be denied (see 3 Carmody on New York Pleading and Practice, § 1066, p. 2343).