(dissenting):
The cause of action alleged is for money had and received, but the plaintiff seems to have framed his complaint as if to obtain an accounting of the defendant" as trustee. In this dubious condition of the complaint the defendants, wanting to plead the statute of limitations, pleaded both the limitation of six years to the action as a common law one and that .of ten years to it as in equity upon a breach of trust and for an accounting, so that on whichever theory the plaintiff, should proceed on the trial he could be met with a bar of the appropriate statute. This was entirely proper. And the defence of the statute is pleaded in the scientific and correct form, viz., that the cause of action stated in the complaint did not accrue ' within six years (and again ten ye are) before the commencement of the action. This has always been the correct form from the begin-, ning, and nothing needs to be added to it (Bell v. Yates, 33 Barb. at p. 628, et seg. / Bliss on Code PI. § 355). That the allegations of the complaint contain dates which, if .true, show that the statute has not run, does not in any way impair the defence. The proof may show the true dates to be prior to those in the complaint. If the plaintiff should prove the latter the defendants may prove earlier dates to be the true ones, and thus enable the defence of the statute to take effect. The defence goes to the substance of the cause of action as-it is, and not merely to the very words and dates of the complaint. In many or most jurisdictions the rule is, following the old practice, that when it appears from the complaint itself that the statute has run the bar of the statute "can be raised by a demurrer to the complaint on the ground that it does not state facts sufficient, but if it do not appear on the face" of the complaint that the statute has run, the defence of the statute" must be pleaded. In this state it is required by statute to be pleaded in both cases (Code Civ. Pro. § 413). It is therefore evident that the sufficiency of the defence cannot be determined by reference to the allegations of the complaint; Such allegations might' show-by their .dates, for instance, that the canse' of action is only five years old, and yet it may in fact be over six, and the defence is to the cause of action as it exists in fact (Bliss on Code Pl. § 355).
The notion that the pleaded defence of the statute should contain in it a denial of the allegations contained in the complaint, or *363an allegation of what the defendant conceives the true dates and facts to be, so as to show the application of the defence, is erroneous. The application is left to the evidence. No such denial or allegation was ever necessary in a plea of the statutfe of limitations. The ancient, time honored and sufficient form has been given in the foregoing. Moreover, a defence (in which word I am not including a denial, but am using it as it is used and defined in section 500 of the Code of Civil Procedure) cannot contain any denials of allegations of the complaint. It must be confined to affirmative facts, and stated separately and numbered. It may not bé mixed up with other defences or denials, and if it is it will be separated therefrom on motion of the plaintiff, or the denials struck out of it. The obscure and inadvertent obiter of Chief Judge Andrews in Douglass v. Phenix Ins. Co. (138 N. Y. 209) that “ the defendant is not entitled to have the benefit of denials made in another part of the answer, unless repeated or incorporated by reference and made a part of the affirmative defense ”, had no effect on subsequent decisions. It is not permissible that they be so repeated and incorporated. It is an every day matter to strike them out when they are, or require the .defences to be separated therefrom and “separately stated and numbered ” as i expressly required by the Code. The said obiter is so inherently contrary to the rule that it could not be followed even if the1 courts tried to follow it, which they have not done. What was lacking in the pleaded defence in that case was not a denial of the allegation of the complaint that .the defendant was a resident of New York, but an affirmative allegation that it was a resident of Massachusetts, so as to show jurisdiction in the court there to make the judgment pleaded in bar. Every defence of new matter always was and is now in the nature of things' based on the theory of “ confession and avoidance ”, i. e., confession of the cause of action alleged and avoidance of it by such plea of new matter. To put denials in defences of new matter would be wholly inconsistent with them. The very test of a defence is whether taking the cause of action alleged in the complaint to be true in substance it is nevertheless defeated by the new matter alleged as a defence. If denials of the cause of action could be introduced into defences, the test of the sufficiency of defences would be gone. They could not be demurred to for insufficiency in any case where the pleader took *364care to incorporate, such denials in them. Hence the decisions striking denials out of defences or separating them therefrom to enable the plaintiff to demur — although a party is not obliged to move to have mingled .causes of action or defences, and denials separated for the purpose of demurrer, for the cause or defence may be singled out and stated by the demurrer. The notion that a defence of new matter may contain denials will stand no test and is easily reduced to absurdity (Frank v. Miller, 116 App. Div. 855; Stern v. Marcuse, 119 id. 478; Rochkind v. Perlman, 123 id. 808; Stroock Plush Co. v. Talcott, 129 id. 14; Flechter v. Jones, 64 Hun, 274; State of South Dakota v. McChesney, 87 id. 293 ; Stieffel v. Tolhurst, 55 App. Div. 532; Flack v. O’Brien, 19 Misc. Rep. 399; Green v. Brown, 22 id: 279; Cruikshank v. Press Pub. Co., 32 id. 152; Staten Island Midland B. B. Co. v. Hinchcliffe, 34 id. 51 et seq.; Pascekwitz v. Richards, 37 id. 250; Carpenter v. Mergert, 39 id. 634; Schultz v. Greenwood Cemetery, 46 id. 299).
The judgment should be affirmed.
Interlocutory judgment overruling demurrer reversed, with costs, . and demurrer sustained, with costs.