6 N.Y.S. 547 | The Superior Court of the City of New York and Buffalo | 1889
The complaint states two causes of action in different counts. The first asks to recover damages for the failure upon the part of defendant to maintain an opening, as by law it is required to do, in a fence separating defendant’s premises from premises occupied by plaintiff. The cause of action is alleged to have arisen upon the 1st day of August, 1881, and been continuous to the commencement of the action, August 18,1888. The second count seeks to recover damages for the creation and maintenance of a nuisance in and about the operations of defendant’s cars and engines adjoining the premises occupied by plaintiff. This cause of action is alleged to have arisen about May 1,1884, and been continuous to May 1,1888. The defendant, for answer to the complaint, seems first to admit the incorporation of defendant. By a
The record discloses that in January, 1889, a notice of motion was served by defendant to obtain an order requiring plaintiff to reply to that portion of the answer embraced within the fifth to the eleventh counts, inclusive. It does not appear that any order was ever obtained, but it is conceded by counsel that plaintiff thereafter voluntarily served a reply, to which defendant now demurs. In disposing of this demurrer we have deemed it best, in view of the manner in which it lias arisen, to determine whether any reply should have been ordered. It is seen by the allegation of the complaint that the time within which the first cause of action alleged arose is specified in terms, as well as the period for which damages are sought to be recovered, and the same is true of the second cause of action. It thus appears that as to that portion of the answer which pleads the statute of limitations all of the facts upon which plaintiff relies to avoid the force of the statute appear by affirmative allegations. It does appear that more than six years have elapsed since a portion of the damages sought to be recovered arose, and that may furnish good ground at the trial upon which to base an objection limiting the recovery, but it does not furnish ground for ordering a reply, when the facts alleged in the complaint show an avoidance of the statute. So far as the answer alleges the recovery of judgments for the same cause of action and the pendency of an action for the same cause, it is to be noticed that the specific periods for which damages are sought to be recovered are stated in the answer,