I dissent. The question whether or not the Statute of Limita- • tions applies should only be disposed of upon the trial of the action. It is an affirmative defense to be pleaded, and the plaintiff is entitled to prove any fact which would take the case out of the statute. To grant upon motion a judgment for a defendant upon the ground that the Statute of Limitations is a bar to the cause of action alleged in the complaint seems to me to be opposed to all of the principles established for the disposition of issues of fact and of law raised by the pleadings; takes from the plaintiff a substantial right, and can add nothing but confusion to the practice. The parties are entitled by the Constitution to a trial of the action either before a jury or at the Special Term, and when issues of fact and law are raised by the pleadings, such issues should be disposed of by a trial.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.