#### Emanuel Perls, Respondent, *against*The Metropolitan Life Insurance Company, Appellant.

(Decided February 3d, 1890.)

Requiring plaintiff to plead to a defense of the statute of limitations is a matter entirely within the discretion of the court, depending upon the facts in each ease; and where the contract set up in the complaint does not appear on its face to have been barred, plaintiff will not be required to reply.

A complaint set forth a cause of action upon a contract under seal. The answer denied such contract, and alleged a contract not under seal. *Held,*that the action was one upon a sealed instrument, unless the complaint should' be amended.

Appeal from an order of this court denying a motion by defendant to compel plaintiff to reply to certain defenses set up in the answer.

On the hearing of the motion at Special Term, the following opinion was rendered.

Van Hoesen, J.—The case of *Hubbell*v. *Fowler*(1 Abb. Pr. N. S. 1), has often been cited, and always, I believe, with approval. But it does not apply to the facts that have been presented to me on this motion. In that case, the note sued appeared on its face to have been barred by the statute of limitations. It was, therefore, proper to require the plaintiff to disclose in advance of the trial in what way the note was taken out of the statute, and this he was required to do by the order that he should file a reply to the plea of the statute. In this case the contract sued on is under seal, and it does not appear that the breach or breaches complained of took place more than twenty years ago. Upon the face of the complaint, the contract is not barred by the statute. The question here is not whether the statute of limitations has been avoided by the occurrence of some one or more of the *518facts that make exceptions to the running of the statute, but is simply this : have twenty years elapsed since the contract was broken ? No reply is needed in such a case.

Nor should a reply be required to the allegation that the plaintiff disentitled himself to commissions by working for other companies than the defendant. The defendant is not entitled to a reply for the purpose of saving itself from próving its defense by evidence. The object of requiring a reply is to make the issues between the parties distinct and salient, not to relieve a party from the burden of proof upon a plainly pleaded issue. To obtain an admission that will dispense with other proof is really the object of the defendant’s motion for a reply.

That is not, as I have already said, a legitimate purpose for which the law permits the court to order a reply.

From the order entered on this decision defendant appealed.

*Wm. H. Arnoux,*for appellant.

*L. A.*Fuller, for respondent.

Bookstaver, J.

The complaint alleges that, by contract under seal made in 1868, defendant agreed to pay plaintiff certain renewal premiums, which have not been paid. The answer denies the allegations of the complaint, and sets forth-that a contract not under seal was executed- between the parties, which contained a provision that commissions should be paid only so long as the plaintiff worked for no other company, and that he has broken his contract; it also alleges payment in full, and then sets up as distinct defenses, (1) the six years’ statute of limitations, (2) the ten years’ statute of limitations, and (3), the twenty years’ statute of limitations, and also a counterclaim for moneys advanced. To this counterclaim plaintiff replied, and defendant by his motion sought to-compel him also to reply to the defenses of the statutes of limitations.

Requiring the plaintiff to plead to such defenses is a-matter *519entirely within the discretion of the court, depending upon the facts in each case. The defendant strenuously contends that, because the answer denies the contract under seal set up in the complaint, and pleads a contract not under seal, the court below erred in assuming that the action is brought on a sealed instrument. In this we think it is in error. The plaintiff must recover, if he recover at all, upon the contract set forth in the complaint, and not upon the one set up in the answer, unless an amendment to the complaint, substituting the one for the other, is permitted by the court. We therefore think the reasoning in the opinion of the learned judge who denied the motion at Special Term is entirely correct, and he properly exercised his discretion in denying the motion upon the facts before him. *Sterling*v. *Metropolitan Life Ins. Co.*was a case very similar to the one under consideration in every respect, except as to the defenses of the statutes of limitations. A similar motion was made in that case, which was denied at Special Term, and the order denying it was sustained both at the General Term and by the Court of Appeals (105 N.Y. 619).

The defendant also contends that the trial in this action would involve an examination of the whole account between the parties as it is contained in the books of the defendant. But this examination cannot be had until the plaintiff proves the contract upon which he relies for a recovery, when it will appear whether either of the statutes of limitations is a bar to the action, and if it does so appear, the action must be dismissed. But even if this were not so, the defendant is not entitled to a reply simply for the purpose of saving it from proving its defense by evidence. The object of the pleadings in a ease is to make distinct issues between the parties, and this is made by the pleadings as they stand.

It is apparent that the case is one in which a reference must be had.

The order appealed from should therefore be affirmed.

Bisohoff, J., concurred.

Order affirmed.