Winkler v. Chase Manhattan Bank , 168 N.Y.S.2d 653 ( 1957 )

Order so far as appealed from unanimously reversed, with $20 costs and disbursements to the appellant, and the motion to strike the second and third defenses denied, with $10 costs. The complaint does not so clearly plead an action in equity as to make it evident on the face of the pleading that the defenses of the three-year and six-year Statutes of Limitations which have been stricken from the answer are not available. The mere nomination of relief sought as equitable does not convert the cause from an action at law, if an action at law is the basic theory adducible from the pleading. The defenses should remain pending the trial and resolution of the issue raised by the pleadings. Concur — Breitel, J. P., Rabin, McNally, Bergan and Bastow, JJ.