
    Charles Minzesheimer, Appellant, v. Edwin G. Bruns, as Administrator, etc., of Philip C. Bruns, Deceased, Respondent.
    
      Decedents’ estates — allegation in a complaint, based upon a disputed claim, as to non-payment — the Statute of Limitations, if applicable, must be pleaded by an administrator — where the statute is a prima facie defense the plaintiff may still prove his claim — matter in avoidance of the statute need not be pleaded.
    
    Where an action is brought upon a disputed claim against the estate of a decedent, and the complaint alleges that no part of the sum in question was ever paid to the plaintiff by any one, or was ever paid to the assignors of the claim by the decedent, and that the claim has been rejected, it is not a tenable objection to the complaint that it does not allege that payment was not made to the assignor between the time of the decedent’s death and the assignment to the plaintiff.
    Where such a complaint sets up a claim which, upon its face, is barred by the Statute of Limitations, it is erroneous to dismiss the complaint without permitting the plaintiff to prove his claim, merely because the defendant, an administrator, has set up the statute.
    Anticipatory matter in avoidance of the Statute of Limitations need not, and • should not, he stated in the complaint.
    A defendant, in order to avail himself of that defense, is required in all cases to plead the Statute of Limitations; the only distinction between the case of an administrator and that of a living debtor is, that the living debtor may waive the statute, while it is the duty of an executor or administrator to plead it always. If the latter violates that duty, he will not be allowed, upon his accounting, any sum paid by him upon a debt which was barred by the Statute of Limitations.
    Appeal by the plaintiff, Charles Minzesheimer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27tli day of November, 1895, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jury.
    The action was brought to recover the amount of a disputed claim against the estate of Philip C. Bruns. The complaint alleged that the deceased in his lifetime was indebted to the filin' of Wasserraann Brothers in the sum of §7,126.40; “that no part of said sum was ever paid to said firm by said Philip C. Bruns; ” that the claim was assigned to the plaintiff after the death of Bruns, and “ that no part of the said sum of §7,126.40 has ever been paid to the plaintiff.”
    
      James E. Ghcmdler, for the appellant.
    
      Donald McLean, for the respondent.
   Barrett, J.:

The plaintiff’s cause of action is well pleaded. The only objection upon the merits which the defendant takes to it is the failure to allege non-payment to the assignors between the time of the decedent’s death and the assignment. Even if the rule that payment is a defense, and must be pleaded, were inapplicable, the plaintiff sufficiently meets the objection. He alleges that no part of the sum in question was ever ¡laid to him by any one, or was ever paid to the assignors by the decedent. He further alleges that the defendant, upon presentation of this claim, duly verified, rejected it. This was quite sufficient, and the objection is hypercritical.

The real question is with regard to the Statute of Limitations. The learned judge at Circuit erred upon this head. He should not have dismissed the complaint without permitting the plaintiff to prove his claim. The complaint unquestionably states a good cause of action. Pri/ma facie, it was barred by the statute. Whether it was conclusively barred depended upon such proof as the plaintiff might have offered in avoidance. Nothing is better settled than that anticipatory matter in avoidance of the statute need not, and should not, be stated in the complaint. (Sands v. St. John, 36 Barb. 628, which was affirmed in the Court of Appeals. See 29 How. Pr. 574, note.) The statute must invariably be pleaded by the defendant. (Code Civ. Proc. § 413.) This rule applies to an executor or administrator quite as much as to a living debtor. (Hayden v. Pierce, 144 N. Y. 517.) The only distinction is this, the living debtor may waive the statute, while an executor' may not. It is the latter’s duty to plead the statute. If he violate that duty, he will not be allowed in his accounting any sum paid upon a debt which, at the time of payment, was barred. (Butler v. Johnson, 111 N. Y. 212.)

There is nothing in the case of Schutz v. Morette (146 N. Y. 137) which militates against this rule. There the facts constituting the original causo of action against the deceased were not stated. The plaintiff simply pleaded the presentation to the executor of her verified claim against the estate, and relied upon this, coupled with the executor’s subsequent silence, as effecting an account stated between herself and the estate. What the court held -was that the executor’s inaction with regard to this verified claim was not an admission of its justice, especially as part of it seemed to be prima facie barred by the statute, and that, consequently, it could not, merely because of its retention and the executor’s silence, ripen into an account stated which would bind the estate. All that the court said regarding the statute was that any inference of affirmative assent by the executor was rebutted by the fact that the claim on its face shov'ed presumptively that in part, at least, it was barred. Consequently, such consent would have been a violation of the executoPs duty to plead the statute. In this connection Andreivs, Oh. J., referred to the rule that against a claim so barred the executor is bound to plead the statute. (P. 143.) There is not the slightest intimation that the ordinary rule of pleading on this head is inapplicable to claims against decedent’s estates.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Rumsey, Williams and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  