29 A.2d 881 | N.J. | 1943
This is an appeal from a judgment of nonsuit. The suit was on a demand note for $800 dated June 3d 1933, made by respondent to the order of plaintiff-appellant. Eight separate defenses were pleaded, but we need to consider only the second, which sets up the six year statute of limitations. The reply as pleaded is merely a general denial.
The suit was begun August 23d 1940, so that the statute was effective unless something appeared that would toll it. The complaint alleged an interest payment of $48 to have been made on September 7th, 1934, and if this had been proved, the suit was begun in time; but there was no such proof. A check of $48 was put in evidence, dated August 20th, 1934, and stamped by the bank as paid on August 29th, 1934. The evidence indicates that the payment was reported at a meeting of the plaintiff lodge on September *365 7th, 1934, but there is no proof of the date when the check was delivered: and if it was delivered at any time before August 23d 1934, the statute would have run.
As to the record, it would seem that proper pleading required that plaintiff should have replied specially, showing a payment within the six years before suit begun. Van Dike v. Adm'rs ofVan Dike,
The judgment is accordingly affirmed.