De Reimer Auto Laundry, Inc. v. Filomio , 173 N.Y.S.2d 982 ( 1958 )

The petitioners, by two separate notices, appeal from the Special Term order dated December 21, 1956, which in part denied motions to dismiss made pursuant to subdivision 4 of rule 106 and subdivision 5 of rule 107 of the Rules of Civil Practice. Following the entry of the order of reference, from which no appeal was taken, the parties executed a written stipulation whose term in effect empowered the Referee to consider issues not usually encompassed in a proceeding to dissolve a membership corporation. It is our view that, under the circumstances, the Statutes of Limitations (Civ. Prac. Act, § 48, subd. 8; § 49, subd. 7) interposed as a defense to the objections and supplemental objections are valid and the court is without power to impose liability with respect to those matters barred thereby. The objections and supplemental objections which are manifestly barred by the statute will be stricken. As to those objections and supplemental objections concerning which there is dispute as to time when a cause of action, if any, accrued, the Referee will take proof and report together with his recommendations thereon. The order of Special Term will be modified, on the law and in the exercise of discretion, in accordance with these directions, and as modified, it is otherwise affirmed. Settle order.

Concur — Breitel, J. P., Frank, McNally and Bergan, JJ.