
    John Metz, Respondent, v. John Metz, Jr., Appellant.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Defense of Statute of Limitations — Proof in avoidance thereof need not be pleaded.
    Where the answer interposed in an action set up the defense of the Statute of Limitations, the plaintiff is not obliged to serve a reply in order to be entitled to offer proof on the trial in avoidance of that defense.
    Appeal by defendant from a judgment of the City Court of the city of Hew York, entered upon a verdict for the plaintiff and from an order denying a motion for a new trial.
    
      Gifford, Haskell, Hobbs & Beard (Anson M. Beard, of counsel),.for appellant.
    August P. Wagener, for respondent.
   Bischoff, J.

This action is brought upon two promissory notes maturing, respectively, fifteen and seventeemonths from September 28, 1889, the complaint giving credit for a payment on account of each note in the year 1903.

The answer set up the Statute of Limitations, and alleged that any payment on account was made under a special agreement whereby the running of the statute was to be left unaffected.

Upon the question as to the nature of the payments on account and the circumstances under which they were made, the plaintiff’s evidence amply supports the finding of the jury that these payments were made upon both notes in recognition of the existence of the debt, unqualified by any condition that the running of the statute should be undisturbed.

The issues of fact depended upon the jury’s estimate of the relative credibility of the parties, each called in his own behalf, and we have no ground for disturbing the verdict.

Objection was taken to the plaintiff’s introduction of any proof as to the circumstances surrounding the payments, upon the ground that the complaint disclosed a case within the Statute of Limitations, but did not contain any allegations of fact showing that the operation of the statute had been suspended or avoided, but clearly there is no force in this contention. An action is commenced, for the purposes of the Statute of Limitations, when the summons is served (Code Civ. Pro., § 398), and from all that appears from this complaint the action may well have been commenced within the period of limitation. Tested by the averments of the complaint, therefore, this case was not necessarily within the statute, and the cause of action did not depend upon the plaintiff’s establishing ground for an exception from the statute by pleading and proof in the first instance. The Statute of Limitations is an affirmative defense, and the proof offered by the plaintiff was relative in avoidancg without further pleading upon his part. Code Civ, Pro., § 522. The reception of this evidence, at the time when it was offered, was within the court’s discretion in its control over the order of proof, and the exceptions taken to its admission, therefore, present no error.

Freedman, P. J., and Fitzgerald, J., concur.

Judgment affirmed, with costs.  