
    BUTLER a. MASON.
    
      Supreme Court, First District ;
    
      Special Term, June, 1857.
    Complaint.—Statute oe Limitations.
    A complaint upon a cause of action which accrued more than six years previous to the commencement of the suit, contained the allegation, inserted for the purpose of anticipating the defence of the statute of. limitations, that “the defendants have not resided, at any time within six years before the commencement of this action, in the State of New York.”
    
      Held, that the allegation was irrelevant, and should be stricken out accordingly.
    Motion to correct' a complaint, by striking ont irrelevant matter.
    
      Bowman & Green, for the motion.
    
      George Douglass, opposed.
   Clerke, J.

The complaint in this action demands judgment for debts incurred in 1844 and 1845; and, for the purpose of anticipating the defence that the claims are barred by the statute of limitations, it alleges that the defendants have not resided, at any time within six years before the commencement of this action, in the State of New York. The defendants move to have this allegation struck out, on the ground of irrelevancy.

The plaintiff’s counsel insists that the averment objected to is material, as without it the complaint would show on its face that the claim was barred by the statute; but in maintaining this, he overlooks the provision contained in section 74 of the Code, which declares that “ the objection that the action was not commenced within the time limited, can only be taken by answerso that evidently this allegation is unnecessary. Whatever may be the time stated in the complaint, when the indebtedness whs incurred, the plaintiff has a prima facie right to recover; and it is a mere optional privilege on the part of the defendants to interpose the defence allowed by the statute of limitations.

If the .defendants failed to answer a complaint showing on its face that the debt was incurred more than six years previously, judgment could be recovered by default, and no error would appear on the record. It is not necessary, and therefore not relevant, to insert the allegation complained of; in pleading, parties must be required to confine themselves to a statement of the mere facts essential to the maintenance of the action or the defence; and if a plaintiff can be permitted to encumber his complaint with matter in anticipation of every possible defence, which the apparent rights or ingenuity of a defendant may interpose, the record would be encumbered, and issues, which may be otherwise avoided, would be introduced into the case.

As it is possible that the plaintiff’s counsel may have been misled by the decision in Genett v. Tallmadge (11 How. Pr. R., 366), I grant this motion without costs.  