This action was brought to recover upon three several causes of action. 1. Damages for non-attend-once of the defendant as a witness for the plaintiff, in an action in this court, in obedience to a subpoena. 2. To recover the plaintiff’s share of certain moneys belonging to him and the defendant jointly, which it is alleged were paid over to the defendant in the year 1854. 3. An account against the defendant for board and tuition of the defendant’s daughters at the plaintiff’s seminary.
The answer denies the material allegations in the complaint, and sets up the statute of limitations to the second cause of action. It also alleges that the plaintiff received the defendant’s share of the moneys mentioned in the second cause of action, together with his own, and claims to recover of the plaintiff the defendant’s share of said moneys and interest. It also sets up other demands against the plaintiff as an offset, about which there seems to be no controversy.
No reply was put in by the plaintiff to any part of this answer. The cause was referred, and was tried before the referee. On the trial the defendant raised the point that the claim made by him in his answer to recover his share of the moneys therein alleged to have been received by the plaintiff" was a counter-claim, and not having been replied to, stood admitted upon the record. This view was controverted by the plaintiff, who insisted that it was not a counter-claim, and required no reply. The referee decided that the defendant’s claim did not stand admitted, and allowed both parties to give evidence upon, and litigate, the question whether the transaction in reference to said moneys was as claimed by the plaintiff' in the second count of his complaint, or by the defendant in his answer, in respect thereto. The referee, in regard to this question, found, upon the evidence,, in favor of the defendant, and allowed him the benefit of his share of the said moneys so received by the plaintiff, being, with interest, the sum of *56175.38, which, with other moneys found due from the plaintiff to the defendant, overbalanced the plaintiff’s demands, as established upon the trial, by the sum of $8.10, for which he ordered judgment for the defendant.
Judgment was thereupon perfected, for the defendant, October 1, 1868, and from this judgment the plaintiff, on the 24th day of ¡November, 1868, perfected an appeal to the general term. A motion is now made, by the plaintiff", for an order, upon such terms as may be just, relieving the plaintiff from this judgment, and allowing a reply to be made to said claim of the defendant, thus allowed him as a counter-claim, and referring the case back to the referee to determine, the same o's though the reply had been put in by leave of the court, when the question arose upon the trial as to the necessity of a reply, and allowing the testimony as far as taken to stand in full force, and further relieving the plaintiff by allowing him to discontinue his said'appeal.
The affidavits on the part of the plaintiff state that when the question was raised by the defendant, upon the trial, whether or not his claim to recover his share of the moneys in which the plaintiff and defendant were jointly interested, and which he alleged had been received by the plaintiff, was a counter-claim requiring a reply, the plaintiff’s counsel stated" to the referee that if it should be held by the referee that such claim was-a counter-claim requiring a reply, he, the plaintiff, would move to be allowed to amend his pleadings, and for leave to put in a reply; and that the referee overruled the defendant’s objection to the plaintiff’s going into proof upon the second count of his complaint, and said that a reply was unnecessary.
It is therefore insisted that the plaintiff was misled by the action of the referee in holding, upon the trial, that no reply was necessary, and yet in his decision giving the defendant the benefit of a demand, as a counter-claim, *57which a reply of the' statute of limitations would have prevented.
The defendant’s affidavits—after to some extent contradicting the statement that the plaintiff’s counsel declared to the referee their intention to move for leave to reply, in case the referee held a reply necessary—go on to state that in submitting the case to the referee, the plaintiff’s counsel insisted that the defendant’s claim for his share of the moneys received by the plaintiff as aforesaid was barred by the statute of limitations, while the defendant’s counsel claimed that the plaintiff could not avail himself of that statute without having pleaded it in a reply. That after the cause was submitted, the referee informed the counsel for both parties that he had concluded to find, upon the facts, in favor of the defendant, but was undecided upon the question of the statute of limitations, and would give both sides an opportunity to be heard on that question, by submitting briefs thereon. That the counsel on both sides accordingly did submit briefs on that point, and, as involved in the inquiry, upon the question whether the defendant’s said claim was a counter-claim. The referee, after such arguments, held, as above intimated, that a reply of the statute was necessary in order to the plaintiff’s availing himself of it, and although the defendant’s claim had not accrued within six years before the commencement of the action, allowed it to him, in the judgment given.
I think the allegation of the plaintiff, that he was misled by the action of the referee, is answered by the fact that before the decision of the question as to the necessity of a reply, to give him the benefit of the. statute of limitations, he was notified, that the question was an open one and placed with respect to it in the same condition which he occupied before the evidence was closed. If, upon the trial, he was in a condition to move for leave to put in a *58reply, he was still so, upon being informed by the referee that the question as to the necessity of a reply was still open. Then, instead of conceding the necessity of a reply, and taking steps to obtain leave to plead the statute, he denied such necessity, and argued in support of his position before the referee. He does not stand in a position to allege that the action of the referee misled him, so that he was thereby prevented from applying for leave to reply, but rather in the position of resting upon the sufficiency of his pleadings, and deliberately submitting his case, with that distinct question, to the decision of the referee.
It seems to me that it would be a stretch of the power of amendment to allow the one now asked for. It does not come within the terms of either section 173 or section 174 of the Code. It is not a case where the plaintiff has been surprised or misled after exercise of ordinary care and skill, nor do I- think the amendment asked for is clearly required in order to promote the ends of justice. (8 How. 303. 6 Bosw. 674.) Each party claimed of the other, before the referee, his share of the money in question ; each alleging that the other had received the whole of it. This question was litigated by them, before the referee, ad libitum, and he found that the plaintiff had received the whole, and had not paid the defendant his share. To allow the plaintiff now to con^e in, not as a right, but as a favor, and plead the statute of limitations against the allowance to the defendant of what the referee finds justly due to him, does not seem to me to be “in furtherance of justice.” It is to be remembered that the lapse of six years between the accruing of the cause of action, and the cqmmencement of the action, is not a bar to the action, Unless the party against whom the cause of action exists chooses to make it so. In suffering the action to go on without replying the statute, he is, on this motion, to be deemed as having’ elected to stand upon the other defenses *59which he made to the demand, on the trial, and should not now be allowed to abjure such election.
[Tioga Special Term, February 15, 1869.The only proper mode of .attacking the judgment is by the appeal which he has taken.
The motion should be denied, with $10 costs.
Parker, Justice.]