Ladies' Auxiliary Asbury Park Lodge No. 128, B. P. O. E. v. Asbury Park Lodge, No. 128, B. P. O. E., of the U.S. of Am.

• Decision Date: 29 January 1943
• Docket Number: No. 4.,4.
• Citation: 129 N.J.L. 364,29 A.2d 881
• Parties: LADIES' AUXILIARY ASBURY PARK LODGE NO. 128, B. P. O. E. v. ASBURY PARK LODGE, NO. 128, B. P. O. E., OF THE UNITED STATES OF AMERICA.
• Court: New Jersey Supreme Court

29 A.2d 881

129 N.J.L. 364

LADIES' AUXILIARY ASBURY PARK LODGE NO. 128, B. P. O. E.

v. ASBURY PARK LODGE, NO. 128, B. P. O. E., OF THE UNITED STATES OF AMERICA.

No. 4.

Supreme Court of New Jersey.

Jan. 29, 1943.

Appeal from Court of Common Pleas, Monmouth County.

Action on a note by the Ladies' Auxiliary of Asbury Park Lodge No. 128, Benevolent and Protective Order of Elks, against such lodge. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

January term, 1943, before BROGAN, C. J., and PARKER and PORTER, JJ.

Harry R. Cooper, of Belmar, for appellant.

Henry K. Golenbock, of Perth Amboy, for respondent.

PARKER, Justice.

This is an appeal from a judgment of nonsuit. The suit was on a demand note for $800. dated June 3, 1933, made by respondent to the order of plaintiff-appellant. Eight separate defenses were pleaded, but we need to consider only the second, which sets up the six year statute of limitations. The reply as pleaded is merely a general denial.

The suit was begun August 23, 1940, so that the statute was effective unless something appeared that would toll it. The complaint alleged an interest payment of $48 to have been made on September 7, 1934, and if this had been proved, the suit was begun in time; but there was no such proof. A check of $48 was put in evidence, dated August 20, 1934, and stamped by the bank as paid on August 29, 1934. The evidence indicates that the payment was reported at a meeting of the plaintiff lodge on September 7, 1934, but there is no proof of the date when the check was delivered: and if it was delivered at any time before August 23, 1934, the statute would have run.

As to the record, it would seem that proper pleading required that plaintiff should have replied specially, showing a payment within the six years before suit begun, Van Dike v. Adm'rs of Van Dike, 15 N.J.L. 289, 296, Vandyke v. Adm'rs of C. Van Dyke, 17 N.J.L. 478, 479; and the burden of proving such payment was on the plaintiff. Id.; also Haines v. Watts, 53 N.J.L. 455, 21 A. 1032. We need not pursue the question of pleading, as the failure of any proof that the interest check was delivered and received within the six year period fully justified the nonsuit.

The judgment is accordingly affirmed.