May 6, 1910.
Ephraim Williams [ Henry A. Prince with him on the brief], for the appellant.
Sumner B. Stiles, for the respondent.
The complaint in this action attempts to set out a cause of action accruing on October 29, 1906. Defendant pleads, among other things, the defense of the Statute of Limitations. After issue joined in due season a motion was made to compel plaintiff to reply, and from the order denying such motion this appeal is taken.
The plea of the Statute of Limitations is a plea of avoidance, and at common law was known as a special plea in bar. (Will's Gould Pl. 570.) At common law a replication was generally necessary to prevent such plea from constituting a bar to a recovery. (25 Cyc. 1414; Almy v. Daniels, 15 R.I. 312; Garrison v. Owens, 1 Pinney [Wis.], 471; Barlow v. Arnold, 6 Fed. Rep. 351.)
Under our Code, when an answer contains new matter constituting a defense by way of avoidance, the court may in its discretion, on defendant's application, direct the plaintiff to reply to the new matter. (Code Civ. Proc. § 516.) In this case the bar of the statute is pleaded in two counts. From these it appears that defendant is a foreign corporation, created and existing under the laws of the State of New Jersey; that the cause of action, if any, arose there; that when the cause of action accrued plaintiff was not a resident of the State of New York, and that by the statute of New Jersey the time within which such an action must be brought is fixed at two years. The affidavit upon which the motion to compel a reply is based states that this action was commenced on October 25, 1909. While the exercise of a power resting in discretion must be determined by the circumstances of each case, as a general rule when the new matter set forth in a plea in bar is of such a character that if true it will constitute a complete defense to the action unless in some manner it is avoided, it will simplify the issue and prevent surprise at the trial if a reply is ordered showing the grounds of such avoidance. ( Seaton v. Garrison, 116 App. Div. 301; Mercantile Nat. Bank v. Corn Exchange Bank, 73 Hun, 78; Toplitz v. Garrigues, 71 App. Div. 37.) The period of time fixed by the Statute of Limitations of New Jersey, as well as the former and perhaps the present residence of the plaintiff, may be material issuable facts upon the question of the sufficiency of the plea in bar, and there are various grounds upon which it may be claimed that the operation of the statute was suspended and its effect avoided. Under such circumstances we think that a reply should have been ordered. The decisions are not entirely uniform, but in the majority of cases, under somewhat similar circumstances, a timely motion to compel plaintiff to reply has been granted. ( Hubbell v. Fowler, 1 Abb. Pr. [N.S.] 1; Cavanagh v. Oceanic Steamship Co., 30 N.Y. St. Repr. 532; Williams v. Kilpatrick, 21 Abb. N.C. 61; Schwan v. Mutual Trust Fund Life Association, 9 Civ. Proc. Rep. 82.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to compel a reply granted, with ten dollars costs.
JENKS, THOMAS, RICH and CARR, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.