Shepard v. Kusch

151 N.Y.S. 438
New York Supreme Court·Decided January 16, 1915·Published

Opinion

CRANE, J.

[1] This action, brought under article 5, tit. 1, c. 14, of the Code of Civil Procedure, is strictly statutory. No such action was maintainable at common law. Vanderveer Crossings v. Rapalje, 133 App. Div. 203, 117 N. Y. Supp. 485; Lewis v. Howe, 174 N. Y. 340, 66 N. E. 975, 1101. By this action plaintiff seeks to have certain tax sales declared void, and the burden rests upon him to show that he has complied with sections 131 and 132 of the Tax Law, and by seeking relief within the time therein specified. This being a purely statutory action, the time limitations stated in the Tax Law are a limitation of the liability, and not merely of the remedy. Otherwise, section 1638 of the Code would afford a relief which is barred by the Tax Law.

[2] Consequently the statute of limitations need not be pleaded as a defense. Colell v. D., L. & W. R. R., 80 App. Div. 342, 80 N. Y. Supp. 675; Pernisi v. Schmalz’s Sons, 142 App. Div. 53, 126 N. Y. Supp. 880; Johnson v. Phoenix Bridge Co., 197 N. Y. 316, 90 N. E. 953; Watertown Nat. Bank v. Bagley, 134 App. Div. 831, 119 N. Y. Supp. 592. Arnold v. Village of Tarrytown, 137 App. Div. 68, 122 N. Y. Supp. 92, is not opposed to this. As the statute of limitations need not have been pleaded, there is no harm in permitting the amendment .of the answer setting it up as a defense.

Motion for reargument denied.

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Shepard v. Kusch, 151 N.Y.S. 438 (N.Y. Super. Ct. 1915).

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Related

Johnson v. . Phoenix Bridge Co.
90 N.E. 953 (New York Court of Appeals, 1910)
Lewis v. . Howe
66 N.E. 975 (New York Court of Appeals, 1903)
Colell v. Delaware, Lackawanna & Western Railroad
80 A.D. 342 (Appellate Division of the Supreme Court of New York, 1903)
Vanderveer Crossings v. Rapalje
133 A.D. 203 (Appellate Division of the Supreme Court of New York, 1909)
Watertown National Bank of Watertown v. Bagley
134 A.D. 831 (Appellate Division of the Supreme Court of New York, 1909)
Arnold v. Village of North Tarrytown
137 A.D. 68 (Appellate Division of the Supreme Court of New York, 1910)
Pernisi v. John Schmalz' Sons
142 A.D. 53 (Appellate Division of the Supreme Court of New York, 1910)
Colell v. Delaware
80 N.Y.S. 675 (Appellate Division of the Supreme Court of New York, 1903)