Page:Federal Reporter, 1st Series, Volume 6.djvu/367

 ■BABLOW 7?. ARNOLDt S66 �fraud." New York Code, § 91, subsec. 6. The question under this section arose as to the burden ef Tproving the fciaie of discovery of the fraud. The superior court, in Baldwin v. Martin, 36 N. Y. Sup. Ct. 98, held that the burden of proving the time of the discovery, was upon the plaintiff. �The previoua New York statute was that "bills for relief on the ground of fraud shall be filed within six years after the discovery of the facts constituting such fraud, and not after that time." 2 Eev. St. 399. The supreme court, in Eneck- son V. Queen, 3 Lans. 302, in construing this law, held that the burden was on plaintiff to allege and proye the time of discovery. �It is true, the New York statute provided that the suit should not be brought "after that time," and the New Yprk Code did not require a reply to the answer setting up the plea of the statute of limitations ; still, the principle upon which those cases were decided sustains the view contended for by defendant's counsel. �The inclination of my mind, when this question was first presented, was that the defendant should allege and prove the time of the discovery of the fraud by plaintiff, Barlow; but subsequent reflection and examination of the authorities has satisfied me that the burden of alleging and proving the time of the discovery of this fraud is upon plaintiff, and there- fore the second paragraph of defendant's answer is a good plea of the statute of limitations ; and, as it is neither traversed nor avoided by the plaintiff, the defendant is entitled to a judgment on her plea. �The fact that the defendant has assumed the burden and alleged the time of the discovery in the third paragraph of her answer, does not deprive her of her right to a judgment on her second paragraph. It is unneeessary to consider the other motions, as defendant is entitled to a ji;dgment on her motion, as herein indicated. ��� �