FREDERICK MENDICINO ET UX. vs. VITO TUOZZOLO

FREDERICK MENDICINO ET UX. vs. VITO TUOZZOLO Superior Court Fairfield County File No. 53824 MEMORANDUM FILED JULY 3, 1940. Keogh & Candee, of South Norwalk, for the Plaintiffs. Tammany & Connery, of South Norwalk, for the Defendant. [MAJORITY — BOOTH, J.] BOOTH, J. The count demurred to in the complaint sets forth an action for fraud in the sale of land. To this count the defendant demurs upon the ground that it appears on the face of the pleadings that the cause of action was not brought within the period of limitation specified in section 6006 of the General Statutes, Revision of 1930. Aside from the fact that this statute was repealed in 1935 by substitution of section 1677c, which not only alters the period of limitation for actions such as this but provides that the period runs from “date of the act or omission complained of” rather than from the accrual of the cause of action as under the earlier statute; the preliminary question of the propriety of raising the statute of limitations by way of demurrer is decisive of the present controversy. It is true that authority exists for this form of pleading where the complaint sets up matters in avoidance of the statute, but where this has not been undertaken the orderly procedure is to test the plea of the statute by demurrer or to meet it with appropriate matter in avoidance. This latter course obviously tends to define and simplify the issues and it should be insisted upon in all cases not falling squarely within the exception above referred to. As the count in the complaint demurred to does not avoid the statute it may not be brought into the case by way of demurrer. For these reasons the demurrer as filed is overruled on all grounds.