Shepard v. Kusch

CRANE, J. [1] This action, brought under article 5, tit. 1, c. 14, of the Code of Civil Procedure, is strictly statutory. No such action was maintainable at common law. Vanderveer Crossings v. Rapalje, 133 App. Div. 203, 117 N. Y. Supp. 485; Lewis v. Howe, 174 N. Y. 340, 66 N. E. 975, 1101. By this action plaintiff seeks to have certain tax sales declared void, and the burden rests upon him to show that he has complied with sections 131 and 132 of the Tax Law, and by seeking relief within the time therein specified. This being a purely statutory action, the time limitations stated in the Tax Law are a limitation of the liability, and not merely of the remedy. Otherwise, section 1638 of the Code would afford a relief which is barred by the Tax Law. [2] Consequently the statute of limitations need not be pleaded as a defense. Colell v. D., L. & W. R. R., 80 App. Div. 342, 80 N. Y. Supp. 675; Pernisi v. Schmalz’s Sons, 142 App. Div. 53, 126 N. Y. Supp. 880; Johnson v. Phoenix Bridge Co., 197 N. Y. 316, 90 N. E. 953; Watertown Nat. Bank v. Bagley, 134 App. Div. 831, 119 N. Y. Supp. 592. Arnold v. Village of Tarrytown, 137 App. Div. 68, 122 N. Y. Supp. 92, is not opposed to this. As the statute of limitations need not have been pleaded, there is no harm in permitting the amendment .of the answer setting it up as a defense. Motion for reargument denied.