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11 Abb. Pr. 398

Jarvis v. Pike

New York Court of Common Pleas

Decided June 15, 1871

New York Court of Common Pleas · decided 1871-06-15

<p>Pleading.—Reply to Statute oe Limitations.</p> <p>A reply to an answer of the statute of limitations is not sufficient if it merely denies the allegation of the answer, that the action was not brought within six years, &c. It should apprise the plaintiff of the issue to be made on the answer, whether of denial or avoidance, by showing that the action was brought within the statute time, or some disability suspending the operation of the statute.</p>

Cited by 1 later decisions — most recently October 1923

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1871-06-15

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Larremore, J.

¶1The defendant in sections 10 and 11 of his answer sets up the statute of limitations by way of avoidance of plaintiffs’ claim. The plaintiffs were required to reply thereto by order of the court, and in pursuance thereof and on information and belief deny that the action was not commenced within the time stated in the answer.

¶2To this allegation of the reply, among others, the defendant demurs. The only part of the demurrer to be considered, is that which is addressed to the reply directed to be made, to said sections 10 and 11 of the answer.

¶3Whether or not the facts alleged in the complaint constitute a cause of action, it is neither my purpose nor province to decide. That question should have been raised by a demurrer to the complaint and may yet be taken advantage of at the trial.

¶4It is evident that the reply required to be made to the plea of the statute of limitations should be definite and explicit.

¶5The party who relies on such a defense should be *399apprised of the issue to be made upon it, whether it be one of denial or avoidance (Hubbell v. Fowler, 1 Abb. Pr. N. S., 1).

¶6The reply in this respect is defective. It does not. show that' the action was commenced within the time prescribed by law, nor set up any of the disabilities by which its operation may have been suspended.

¶7The denial is also defective in form. It is made upon information and belief. It should be made upon knowledge or information sufficient to form a belief (Heye v. Bolles, 2 Daly, 231).

¶8The demurrer must be sustained, with leave to plaintiffs to serve amended reply within ten days.

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