63 N.Y.S. 911 | N.Y. App. Div. | 1900
Upon the return day of the citation requiring the executrix of the last will and testament of Louis J. Jordan to account, she moved in open court upon the petition to dismiss the citation for the reason that it appeared on the face of the petition that more than six years had elapsed since the right of the petitioner to demand
We do not think that the practice adopted by the executrix was the proper one for presenting the question either in the Surrogate’s Court or in this court. Instead of making a motion to dismiss the petition and citation, she should have answered, pleading the statute which she claimed was applicable. The Statute of Limitations is always a matter of defense and must be presented by answer. Here, although a mere reading of the dates as to the time when the testator died, when letters were issued and when the application for the citation was made, might support an argument based on the statute, such dates would not be conclusive. The petitioner as against the array of dates might be able to show facts which prevented the running of the statute. ' In other words, where from the number of years that has elapsed the statute apparently has run, it is always competent to show facts or circumstances which would have prevented the running of the statute and destroyed its effect as a bar. We do not think, therefore, that we should discuss or determine whether the six-year or other Statute of Limitations applies, leaving that in the first instance for the surrogate to determine should the question be properly raised by answer.
The order appealed from should be affirmed, with costs, and the proceeding remitted to the Surrogate’s Court with leave to the executrix to answer.
Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and McLaughlin, JJ.
Order affirmed, with costs, and proceeding remitted to Surrogate’s Court with leave to the executrix to answer.
