UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 26, 1979
WAYNE ECKHART, PLAINTIFF-APPELLEE,
LLOYD SCANTLEBURY, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Southern District of New York.
Present: HONORABLE WILFRED FEINBERG, HONORABLE JAMES L. OAKES, Circuit Judges, HONORABLE CHARLES L. BRIEANT, JR., District Judges.
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the ruling that the three-year statute of limitations applies to plaintiff's claim is AFFIRMED. See, e.g., Williams v. Walsh, 558 F.2d 667, 670 n.3 (2d Cir. 1977); Kaiser v. Cahn, 510 F.2d 282, 284-85 (2d Cir. 1974).However, we remand to the district court for consideration of the possibility, not argued to it before, that the time-barred counterclaim can be asserted by way of recoupment or set-off. See, e.g., Bull v. United States, 295 U.S. 247, 262 (1935); N.Y. CPLR § 203(c); C. Wright, Law of Federal Courts 394 (3d ed. 1976).
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