'■'.off/i .'J V-'v.'.'i;'i' !■'■>'' Y Cornell University Law Library The Moak Collection " f PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KFN6018.Z9D42 Counter-claim under the New Yorl( Code of 3 1924 022 786 820 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022786820 cotjntbr-claim; UNDER THE NEW YORK Code of Civil Procedure. A MONOGRAPH UPON COUNTER-CLAIM AND KINDRED REMEDIES ADAPTED TO JURISDICTIONS WHICH FOLLOW, IN SUBSTANCE, THE REVISED CODE. BY , JOHN S.^DERBY, Counselor at Law, AUTHOR OF "Assignment for Creditors," " Mechanics' Liens,' and "Provisional Remedies." ROCHESTER, N. Y. WILLIAMSON & HIGBIE, Law Booksellers and Publjshebs, 1888, Entered according to Act of Congress, in the year One Thousand Eight Hundred and Eighty-Eight, By WILLIAMSON & HIGBIE, In the Office of the Librarian of Congress, at Washington. TO HENRY W. BOOKSTAVER, OF THE COMMON PLEAS, WHO PERMITS ME TO OFFER THIS TRIBUTE TO A JUDICIAL WORTH WHICH NONE OF THE PROFESSION APPRE- CIATES MORE THAN THE Aui-HOR. INTRODUCTION. The importance of this remedial agent, and the length of time that has elapsed since the issuance of a work com- prehending the decisions relative thereto, convince the author of the utility, if not of the necessity of this volume. In counter-claim, as defined by the Codes, and inter- preted by a multitude of decisions thereon, we can scarce- ly recognize the features of the common law remedies of set-off or recoupment ; embracing, as it does, both those remedial rights and extending them far beyond the most liberal construction that courts ever gave to earlier statutes. The code, whatever may be its liability to adverse crit- icism in many particulars, has extended this remedy in accordance with the equitable principle in which it had its origin — to enable litigants to determine their respect- ive rights in one and the same proceeding. It has been the aim of the author to present concisely all decisions of practical importance, that have arisen under the code, and to place them in such arrangement as to render them most easily accessible. JOHN S. DERBY. New York, Oct. i, if TABLE OF CONTENTS. SECTION .500 OF CODE. The Answer. Its contents. New matter. Counter-claim, Nature of remedy. Set off. Recoupment. Election between Counter-Claim and Answer. Judgment on Counter-claim. Discontinuance of Counter-claim. Construction of Statute. Pleading. Limitation of Counter-claim. Verification " " Waiver of Informalities. SECTION 501. Definition of Counter-claim. Between what parties. Must diminish recovery. "Subject of Action." "Cause of Action," Between what parties allowable, " Transaction set forth " in Complaint. " Subject of the Action," "Action on Contract," Cases referring to Agency, Assault and battery. Attorney, Banks, Chattels. Cottimod Garfiefi viii CONTENTS. Cases referring to — Continued. Contract. Divorce. Dower. Fraud. Goods sold. Judgments. Landlord and Tenant. Mechanic's Lien. Mortgage. Negligence. Note. Partnership. Realty. Services. Surety. Taxes. Tort. Warranty. SECTION 502. Limitation of Counter-claim. What claims may be Assigned. Action on Assigned Contract. Note over-due. Equitable set off. SECTION 503. Judgment on plea of Counter-claim. SECTION 504. Defendant's Affirmative Judgment. SECTION 505. Counter-claims against Executors. SECTION 606. Counter-claims in favor of Executors, SECTION 507. Several CoUNitR-cLAiMB, How Pleaded, CONTENTS. ix SECTION 508. Partial Defenses. SECTION 509. Affirmative Judgment. SECTION 511. Admission of part of Claim. SECTION 512. Judgment when Counter-claim is less than Claim. SECTION 513. Verification of Dilatory Plea. SECTION 514. Reply. When required. When must be pleaded. Cannot contain Counter-claim. Waiver of Reply. Failure to Reply. Effect of. SECTION 515. SECTION 516. Reply to New Matter, When Required. Statute of Limitations. Bankruptcy. SECTION 517. Several Avoidances. Demurrer, Effect of, To Reply. To Answer, To Counter-claim, Form of, X CONTENTS. Counter-claims in Justices' Courts. Where Executor is party. Neglect to plead Counter-claim. Rules relating to. Judgment when pleaded. TABLE OF CASES CITED. Adams v. Roberts. ^tna Ins. Co. v. Baker, Agate V. King, Ainslie v. Boynton, Allaire v. Whitney, Allen V. Douglass, Allen V. Maddox, Allen V. Shackelton, American Dock Co. v. Staley, Andrew v. bible Soc. Annis v. Upton, Anonymous, Argall V. Jacobs, Armour v. Leslie, Armstrong v. McKelvey, Arthur v. Homestead Ins. Co. Ashley v. Marshall, Askins v. Hearne, Ayers v. Covill, Aymer v. Chase, Ayrault v. Chamberlain, Ayrault v. Pacific Bank, B. Baker v. Bailey, Baker v Nussbaum, Baldwin v. Berrian, Bardwell v. Collie, Barhyte v. Hughes, Barker v. Walbridge, Barnabee v. Green, Barnard v Gordan, Barnes V. Gilmore, Barry v. Cavanagh, 1 Civ. Pro. ,204. 71 Ind. 102. 17 Abb. 159. 2 Barb. 258. I Hill, 414. 29 Kas. 412. 40 Iowa, 124. 15 Ohio St. 145. 40 Sup 'r. 539. 4 Sandf. 156. 66 Barb. 370. 17 Abb. 48. 87 N. Y. no. 39 Sup. 353. 39 Hun. 213. 78 N. Y. 462. 29 N. Y. 494. 3 Abb. 184, 18 Barb. 260 12 Barb. 301. 33 Barb. 229. 6 Robt. 337. 16 Barb. 54 I Hilt. 549. 53 How. 81. 45 N. Y. 494. 33 Barb, 320. 14 Minn. 469. 89 N. C. 158. 3 Ired. 268. 6 Civ. Pro. 286. J27 Mass. 394. 5, 95 100 48 66 45 15 33, 41, 48 7, 49 TO 64 17, 86 42 99 102, 103 14 91 13 39 83 96 83 65 28, 35, 24 64 57 47 81 79 42 4 Xll CASES CITED. Bartlet v. Hlias, Bates V. Rosekrans, Bathgate v. Haskins, Batterman v. Pierce, Battle V. Thompson, Bayliss v. Murray, Beard v. Hand, Beardsley v. Stover, Beaty v. Swarthaut, Beckwith v. Union Bk. Belknap v. Mclntire, Bell V. Lesbini, Belleau v. Thompson, Bellinger v. Craigne, Bender v. Sherwood, Benedict v. Seymour, Bennett v. Bates, Bennett v. Matthews, Benson v. Stein, Benton v. Stewart, Bernheimer v. Willis, Berrian v. Mayor, Berry v. Carter, Betz V. Peter. Bidwell V. Madison, Bird V. Lanius, Birkbeth v. Stafford, Bissell V. Pierce, Bitting V. Thaxter, Blair v. Claxton, Blakeley v. Boruff, Bleecker v. Vrooman, Bockover v. Harris, Bogardus v. Parker, Bogart, in re, Boreel v. Lawton, Borst V. Corey, Boston Silk Mills v. Hull, Borey v. Clark, Brady v, Brennan, 2 Abb. N. C. 264 49 37 N. Y. 409. 15, 17 63 N. Y. 261, 48 3 Hill 171, 3, 5, 76 65 N. C. 406. 22, 26 69 Iowa, 290. 94 88 Ind. 183. loi 7 How. 294. 7 32 Barb. 293. 2 9 N. Y. 211. 68 2 Abb. 366. 34, 52 4 Civ. Pro. 367. 56 33Cal. 495. 7 31 Barb. 534. i, 11, 55 15 How. 258. 87 6 How. 298. 83, 84 26 Hun. 264. 74 64 Barb, 416. 85 34 Ohio St. 295. 92 3 Wend. 236. 5, 31, 45 II Hun. 16. 49 IS Abb. N. S. 207. 32, 33 19 Kas. 140. 56 3 Week. Dig. 517. 44 10 Minn. 13. 50 7 Ind. 615. 96 23 How. 236. 65 21 How. 130. 39 72N.C. 541.31,32,35,56. 57 18 N. Y. 529. 46 71 Ind. 93, 8, 21, 53 13 Johns, 302, 5, 31, 45 11 J. & S. 548. 23 7 How. 303. 44 28 Hun. 466. 82 90 N. Y. 293. 46 15 ^- Y. 509. 29 37 How. 299 4, 5, 7, 67 3 Neb. 161. 4 25 Minn, 2(6, 57 CASES CITED. xni Bradbury v. Winterbottom, Bradner v. Faulkner, Braham v. Johnson, Brasheai v. West, Breitert v. Krueger, Breen v. Seward, Brichta v. N. Y. Lafayette Co. Bridge v. Johnson, Bridge v. Payson, Briggs V. Freedman, Brinkerhoff v. Brinkerhoff, Brooks V. Hanford, Brown v. Buckingham, Brown v. Gallandet, Brown v Harper, Brown v. Tuttle, Brooklyn v. Earle, Bush V. Lathrop, Burrell v. DeGoot, Burkhardt v. Burkhardt, Burke v. Thorne, Burlington v. Palmer. Butler V. N. Y. & L. E. Ry. Butterworth v. Fox, Byrne v. Weeks, Byxbie v. Wood, C Caldwell v. Lawrence, Campbell v. Campbell, Campbell v. Geuet, Campbell v. Routt, Carpenter v. Butler, Carpenter v. Butterfield, Carpenter v. Leonard, Carpenter v. Manhattan Co. Carpenter v. Wilverschied, Carleton v. Byington, Carrol v. Charter Oak Co. Carter v. Koezley, Carver v. Shelley, 13 Hun. 536. 87, 88 93N. Y. 515. 85 62 Ind. 259. 15 7 Peters, 608. 69 62 Ind. 142. 94 1 1 Gray, 118. 71 2 Hall, 372, 63 5 Wend. 342. 73 5 Sand. 210. 83, 96 9 C. P Rep. 73- 18, SI SjfAbb. N. C. 207. 98 IS Abb. 342. 64 21 How. 190. 39 8 N. Y. 413. 10, 76 4 Ore. 89. 65 66 Barb. 169. 32, 44, 57 I Law. Bui. 46. 45 22 N. Y. S3S. 66, 74 5 Duer. 379. 16 36 Ohio St. 261. 49 44 Barb. 363. 16, 17 67 Iowa, 681. 56 22 Barb. no. 62 IS How. S4S- 73 7 Bosw. 372. 40 24 N. Y. 607. 68 10 Wise. 331. 65 12 Hun. 637. 43 2 Hilt. 290. 24 42 Ind. 410. 8 13 Week. Dig. 112 33, 41 3 Johns. Cas. 145. 34 S Minn. iss. 25, 48 22 Hun. 49. 13, 14, 30 S Minn. 170. 25, 48 24 Iowa, 172. 94 40 Barb. 392. 63 9 Bosw. S83. I 17 Kas. 472. 6 XIV CASES CITED. Caryl v. Williams, 7 Lans. 416. 9, 2°. 49 Cason V. Cason, 79 Ky. 558. 18 Cass V. Higenbottam, 100 N. Y. 248. 39> SI Cavalli v. Allen, 57 N. Y. 508. S3 Challis V. White, 35 Kas. 506. S7 Chambers v. Frozier, 29 Ohio, 362. 4S Chambers v. Lewis, 10 Abb. 210. 34, S2 Chamboret v. Cagney, 41 How. 128. 29, 41 Chance v. Isaacs, 5 Paige. 592. 74 Channing v. Moore, Daily Reg. Feb. 7,1888, City Bank v. Park Bank, Clark V. Story, Clarkson v. Manson, Clegg V. Cramer, Cleland, matter of, Cleveland v. Morrell, Clifford V. Dunn, Clinton v. Eddy, Clough V. Murray, Cockle V. Underwood, Coffin V. McLean, Cohn V. Hussan, Coit V. Stewart, Collins V. Swain. Collins V. Winslow, Collyer v. Collins, Colt V. Brown, Commrs. v Northern Bk, Concord v. Pillsbury, Continental Bk. v. Townsend, Cook V. Jenkins, Cook V. Moseley, Cornelius v. Kessel, Cornell v. Dakin, Courtney v. N. Y. City Ins. Co. Cragin v. Lovell, Cram v. Dusser, Cramer v, Benton, 4, 13. 22. 36, 52 32 Hun. 105. 32 29 Barb. 295. 46 60 How. 45. 22 32 Hun. 162. 24 Law Rep. 2 Ch. 808. 36 13 Ind. 545. 94 81 N. Y. 52. 2 54 Barb. 54. 7, 22, 96, 99 19 Abb. 97. 15 I Abb. I. 12 80 N. Y. 560. 25 66 How. 150. 91 50 N. Y. 17. 32, 33, 58 7 Robt. 94. 13, 18 12 Wend. 356. 72 17 Abb. 467. 12 12 Gray, 233. 38 1 Ky. 174. 27 33 N. Y. 310, 55 87 N. Y. 9. 72 79 N. Y. 575. 20 13 Wend. 277. 58 58 Wis. 237. 30, 53 38 N. Y. 253. 2 28 Barb. 116. 63 88 N. Y. 258. 9, 14, 16, 22, 40, 53 2 Sandf. 120, 50, 56 60 Barb, 216, 84 CASES CITED. XV Crary v. Goodman, 12 N. Y. 266. 53 Culver V. Barney, 14 Wend. 161. 106 Cummins v. Morris, 25 N. Y. 625, 72 Cummins v. Williams, 5 J. J. Marsh, 384. 81 Currie v. Cowles, 6 Bosw. 453. 8 Dambmann v. Schulting, 4 Hun. 50. 98 D'Armand v. Pullen, 13 La, An. 137, 47 Darwin v. Potter, 5 Denio, 306. 6 Davidson v. Alfaro, 6 Week. Dig. 455. II Davis V. Morton, 5 Bush. (Ky.) 160. 14 Davis V. Stover, 58 N. Y. 473- 81 Davis V. Toulmin, 77 N. Y. 280. 26, 55 Day V. Pool, 52 N. Y. 416. 58 Dayton Ins. Co. v. Kelly, 24 Ohio St. 354. 97 Debord v. LaHue, 26 Ind. 212 96 DeGroot v. U. S. 5 Wall. 431- 27 DeLayer v. Michaels, 5 Abb. 203. 39 Deming v. Kemp, 4 Sandf. 149. 5 Demnon v. Boylston Bank, S Cush. 194. 37 Denniston v. Trimmer, 27 Hun 393. 8, 21, 56 Detroit Bk. v. Barnum Wire Wks. , 58 Mich. 124. 73 Dewey v. Hoag. 15 Barb. 365. 86 Diddell v. Diddell, 3 Abb. 167. 35, 43 ■Dietrich v. Kock, 35 Wis. 618. 9, 20, 21, 46 Dillaye v. Parks, 31 Barb. 132. 2 Dillon V. 6th Av. Ry. 46 Sup'r 21. 91, 98 Dininny v. Fay, 38 Barb. 18. 65 Dolan V. Petty, 4 Sandf. 673. 87 Donohue v. Henry, 4 E. D. Smith, 162, 32. 56 Dorwin v. Potter, 5 Denio, 306. 42, 47 Dounce v. Dow, 57 N. Y. 16. 58 Douthitt V. Smith, 69 Ind. 463. 8 Drake v. Cockroft, 4 E. D. Smith, 34. 32. 56 Draper v. Stouvenel, 38 N. Y. 219. 77 Duncan v. Stanton, 30 Barb. 533. 69 Dunham v. Dennis, 9 Iowa, 543. 40 Dunn V. Elliott, 2 H. Bl. 587. 74 Durbin v. Ward, 16 Ohio St. 533, 92 Pusenbury v, Woodward, I Abb, 443, 8? XVI CASES CITED. Earl V. Bull, Edgerton v. Page, Edwards v. Todd. Elmendorf v. Lockwood, Elwell V. Skidmore, Ely V. Cook, Emery v. Butler, Englebrech v. Rickert, Equitable Life Ass'n v. Cuyler, Ethridge v. Osborne, Evans v. Stone, Evansville Bk. v. Kaufmann, Everett v. Coffin, Everett v. Strong, F. Fabricotte v. Launitz, Falkland v. St. Nich. Bk. Fallon V. Durant, Fanning v. Hibernia Ins. Co. Farmer v. Daniel, Farmers' Bk. v. .Lang, Farmers' Loan & Trust v. Hunt, Farrington v. Payne, Felleman v. Dolan, Fcttrech v. McKay, Field v. Mayor, Finn v. Finn, First Nat. Bk. v. Day, Fitzsimmons v. Insurance Co. Fleishman v. Stern, Fleming v. Niagara, Fleury v. Butler, Folsom V. Winch, Ford v. Chaiidler, Fort v. McCully, Foster v. Butler, Foster v. Coe, Fowler v. N. Y. Indem. Co. Foy v, Troy & Bost. Ry. 15 Cal. 421. 20 N. Y. 281. I Scam. (111.) 462 57 N. Y. 322 77 N. Y. 282. 40, 28N.Y. 355. 22 Hun. 434. 14 Minn. 140. 9, 21, 75N. Y. 511. 9, 12 Wend. 529, 6, 42, 80 Ky. 78. 24 Hun, 612. 6 Wend. 603. 5 Hill, 163. 3 Sandf. 743. 84 N. Y. i'45. 60 How. 178. 37 Ohio St. 344. 82 N. C. 152. 22 Hun. 372. I Cod. R. (N. S.) 15 Johns, 432. 7 Abb. 395. 47 N. Y. 426. I 6 N. Y. 179. 62 How. 83. 32 Iowa, 680. 18 Wis. 234. 61 How. 124. 12 Wend. 246. 6, 3 32 Conn. 140. 63 Iowa, 477 26 How. 513. 59 Barb. 87. 7 East, 479 4 Lans. S3 26 N. Y. 422. 24 Barb. 382, S8 46 40 64 5° 36 25 48 15 47 98 63 64 71 12 73 93 92 S3 2, 9. 38 I, 13 77 35 8,22, 102 63 43 65 85 88 I, 36, 53 34 10, II 67 67, 71 5> 54 7, 73 63 Oi CASES CITED. xvii Fried V. N. Y. Cent. Ry. 25 How. 285. 62 Friswell v. King, 15 Sim. 191. 36 Fry V. Evans, 8 Wend. 530. 80 Fullerman v. Dolan, 7 Abb. 395. 57 Fullerman v. Fullerman, 6 Week. Dig. 22. 42 Fulton Fire Ins. Co. v. Baldwin, G. Gabe v. McGinnis, 35 N. Y. 648. 65 57 Ind. 377. 8 Gaff V. Greer, 88 Ind. 122. 8, 16 Gage V. Angell, 8 How. 336. 6 Gallop V. Albany Ry. Co. 65 N. Y. I. 47 Gannon v. Dougherty, 41 Cal. 661. IS Gardiner v. Fargo, 58 Mich. 72. 24 Gardner v. Langdon, Daily Reg. Mch. 15, 88. lOI Garrett v. Love, 89 N. C. 205. IS Gassett v. Croker, 9 Abb. 39. 93 Gatling V. Carteret Co. 92 N., C. 536. 21, S6 Geenia v. Keech, 66 Barb. 245. 12, 93 Genet v. Howland, 30 How. 360. 61 George v. Tate, 102 U. S. 564. 69 Gibbs v. Dickson, 33 Ark. 107. 94 Gibson V. Carlin, 13 Lea. (Tenn.) 440. S4 Gilbert v. Cram, 12 How. 455. I Gillespie v. Torrence, 25 N. Y. 306. c >, 12 Gleadell v. Thompson, 56 N. Y. 194. 13 Gleason v. Clark, 9 Cow. 57. 6,31, 36, ss Gleason v. Moen, 2 Duer. 639. 8, 23, 76 Glen & Hall Co. v. Hall, 61 N. Y. 226. 13, 30 Goddard v. Fulton, 21 Cal. 430. I Goeble v. Hough, 26 Minn. 252. 46 Goit V. Nat. Protect. Co. 25 Barb. 189. 63 Gophen v. Crawford, 53 How. 278. 36 Gordon v. Bowne, 2 Johns. 150. 3, 4 Gordon v. Swift, 46 Ind. 208. 23 Gottler V. Babcock, 7 Abb. 392. 39 Gould V. Gould, 36 Barb. 270. 61 Graff V. Kahn, • 18 111. App. 485 55 Graham v. Dunnigan, 6 Duer. 629. 103 Grange v. Gilbert, 10 Civ. Pro. 98. 103 Grant v. Button, 14 Johns, 377. s. 3h 54 Xvlll CASES CITED. Green v. Bell. Green v. Carson, Green v. Parsons, Greenleaf v. Low, Gridley v. Garrison, Grierson v. Mason, Griffin v. Colver, Griffin v. Griffin, Griffin V. Moore, Griffin V. Rice, Grimes v. Duzan, Guist V. Murphy, Gutchess V. Daniels, Haas V. Shaw, Hadley v. Prather, Hall V. Holt, Hall V. Robinson, Halsey v. Carter, Hamer v. McFarlin, Hammond v. Terry, Hancock v. Fleming, Harlock v. LaBaron, Harper v. Calhoun, Harris v. Hammond, Harris v. Taylor, Hart V. Davis, Harway v. Mayor, Hatch V. Benton, Hatchett v. Gibson, Hatfield v. Todd, Haynes v. Mowbray, Hayward v. Seeber, Heath v. Mahoney, Heidenheimer v. Wilson, Henry v. Daley, Henry v. Henry, Hicks V. McGrorty, Hicksville R. R. v. L. I'ld Hinkle v. Margerum, 3 Abb. 291. 4 Met. Ky. (Ky.) 76. 27 Week. Dig. 544. 4 Den. 168. 4 Paige, 647. 60 N. Y. 394. 16 N. Y. 489. 23 How. 183. 52 Ind. 295. I Hilt. 184. 32 Ind. 361. 18 How. 411. 49 N. Y. 605. 47 25 57 107 36 35 40 43 41 36 30 H. 91 Ind. 384. 92, loi 64 Ind. 137, 8 25 Hun. 277. 87 2 N. Y. 293. 61 I Duer. 667. 9 4 Denio, 509. 83 3 Lans. 186. 18 85 Ind. 571. 100 I Civ. Pro. 168. 31, 37 7 How. (Miss.) 203. 18 How. 123. II, 53 Conn. 500. 21 Tex. 411. 1 Hun, 623. 35, 58, 66, 6 Barb. 28. 11, 13 Ala. N. S. 587. 13 Civ. Pro. 265. Daily Reg. Feb. 28, '88. 61 Iowa, 574. 8 12 Week. Dig. 414. 39 31 Barb. 636. 34, 38 12 Hun. 210. 25, 55 27 How. 5. 43 2 Duer. 295. 71 R. R. 48 Barb. 255. 8 50 Ind. 240. 8, 30, 51 36 12 81 57 68 77 5° 91 77 CASES CITED. Hobbs V. Duff, Hodgman v. West. Ry. Hoffa V. Hoffman, Hogan V. Shorb, Holbrook v. Lackey, Holsbauer v. Heine, Hopkins v. Lane, Hopping V. Quim, Horn V. Hoyle, Howe V. Sheppard, Hubbell V. Fowler, Hubby V. Chaplin, Hudson V. Snipes, Hunt V. Chapman, Hunt V. Gilmore, Hunt V. Otis Co. Hurst V. Everett, Hyslop V. Randall, 9 62 57 67 24 23 Cal. 629. 7 How. 48. 33 Ind. 172. 24 Wend. 457. 13 Met. 132. 37 Mo. 443. o 87 N. Y. SOI. 24, 95 12 Wend. 517. 6, 31, 37, 54 28 Fed Rep. 743. 2 Sumn. 409. 69 I Abb. N. S. I. 97 22 Tex. 582. 25 40 Ark. 75. 6 51 N. Y. 555. 33, 41, 48 59 Pa. St. 450- 4, SI 4 Met. 464. 54 91 N. C. 399. 51 4 Duer. 660. 66 Inman v. Inman, Inslee v. Hampton, Irving V. DeKay, Isham V. Davidson, Ives V. Goddard, Ives V. Miller, Ives V. VanEpps, 3 Mo. App. 596. 92, loi II Hun. 156. II, 76 10 Paige. 3T9. 80 52 N. Y. 240. 18,45,51, 81 I Hilt. 434. II 19 Barb. 196. 24, 52 22 Wend. 155. 5, 31, 54 Jackson v. Daggett, Jarvis v. Pike, Jefferson Bk. v. Chapman, Jewett V. Palmer, Johnson v. White, Jones V. Scriven, Jordan v. Shoe & L. Bk. Judson v. Stilwell, Kelley v. Garrett, Kelley v. Teague, Kelsey v. Bradbury, 24 Hun, 204. 65 II Abb. N. S. 398. 97, 99 19 Johns. 322. 34 7 Johns. Ch. 65. 71 6 Hun, 587. 98 8 Johns. 358. 58 74 N. Y. 467. 14, 95 26 How. 513. 23, 35 K. I Gilman, 649. 63 Cal. 68. 21 Barb. 531. 38 47 52 XX CASES CITED. Kelsy V. Tremaine, Kimberling v. Hall, King V. Fuller, King V. Quidnick, Kingston bk. v. Gay. Kirk V. Woodbury Co. Kline v. Gondrum, Kneedler v. Sternburg, Knour v. Dick, Kugel V. Kugel, Kurtz V. McGuire, 29 How. 439. 20, 95 10 Ind. 407. 91 3 Cai. 152. i°5 14 R. I. 131. SI 19 Barb. 459, 66 55 Iowa, 190. 94 II Pa. St, 242. 77 10 How. 67. 5, 6 14 Ind. 20. 23 Daily Reg. Mch. 7, '88 43 5 Duer. 660. 32, 56 Lablanche v. Kirkpatrick, LaFarge v. Halsey, Landau v. Levy, Lamphere v. Hall, Lanier V. Bronson, Lasher v. Williamson, Laws V. Carner, Lawrence v. Bank of Republic, Lawton v. Shepherd, Leavenson v. Lafontaine, Leavenworth v. Packer, Lebanon Bk. v. Karmany, Lee V. Eure, Lehmair v. Griswold, Lemon v. Trull, Lerche v. Brasher, Leslie v. Leslie, Lewis V. Cosgrove, Lignot V. Redding, Lippencott v. Goodwin, Loosey v. Orser, Lowell v. Lane, Luddington v. Slauson, Lush v. Adams, Mackey v. Mackey, Mangum v. Ball, Manning v, Watson, 8 Civ. Pro. 256. 92 4 Abb. 297. 25, 46, 55 1 Abb. 376. 16 26 How. 509. 66 21 S. C. 41. 73 55N. Y. 619. 25,55, 57 2 Cinn. Rep. 80. 92, loi 3 Rob. 142. 12, 20, 37, 96 5 Week. Dig. 319. 88 3 Kas. 523. 36 52 Barb. 132. 20, 41 98 Pa. St. 65. 22 93 N. C. 5. 32, 56 40 Sup'r. loo. 29 13 How. 248. 58 8 Civ. Pro. 115. 54 loAbb.N.S. 311. 43,93, 98 2 Taunt. 2. 5, 45 4 E. D. Smith, 285. 7, 10 8 How. 242. 83, 84 4 Bosw. 391. 83 33 Barb. 292. 52 38 Sup'r. 81. 96 10 Civ. Pro. 60. 26, 95 43 Barb. 58. 36 43 Miss. 288. 22 Cheves, 60, 40 CASES CITED. XXI Manning v. Winter, Martin v. Hill, Martin v. Kunzmuller, Martine v. Willis, Marvin v. Smith, Mason v. Heyward, Mason v. Knowlson, Matteson v. Ellswoith, Mattison v. Smith, Mattoon v. Baker, Maule V. Crawford, Mayo V. Davidge, Mayor v. Maybie, McAlister v. Howell, McArthur v. Green Bay &c. McCabe v. Gay, McClenahan v. Cotton, McConike v. Hollister, McDonald v. Davis, McDougall V. Maguire, McDougall V. Walling, . McGin V. Torrens, McGuinty v. Herrick, Mclntyre v. N. Y. C. R. McKee v. Judd, McKensie v. Farrell, McKyring v. Bull, McLachlin v, Brett, McLaughlin v. Winner, McMahon v. Spinning, McNamara v. McNamara, McQuaide v. Stewart, Mercein v. Smith, Merchants' Bank v. Richards, Merrick v. Brainard, Merrill v. Grinnell, Merritt v. Seaman, Merritt v. Thompson, Metropol, Life Ins. Co, v. Meeker, 7 Hun. 482. I 42 Ala. 275 5 37N. Y. 396. 60,66,67, 68, 70, 72 2 E. D. Smith, 524. 69, 72 46 N. Y. 571. 64 3 Minn. 182. 7 I Hill. 218. 69 28 Wis. 254. 7 19 Abb. 288. 92 24 How. 329. 7, 20 14 Hun, 193. 2 44 Hun, 342. 67 13 N. Y. 151. 46 42 Ind. 15. 94 34 Wis. 139. 56 20 Cal. 509. 69 83 N. C. 332. 82 19 Wis. 269. 8, 24 1 Law Bui. 30. 97 35 Cal. 274. 28, 36 48 Barb. 364. 41 4 Law Bui. 29. 97 5 Wend. 240. 106 43 Barb. 532. 10 12 N, Y. 622. 61, 64 4 Bosw. 192. 93 16 N. Y. 297. ■ I 105 N. Y. 391. 67 63 Wis. 120. 81 51 Ind. 187. 85 8 Abb. 18. 43 48 Pa. St. 198. 48 2 Hill, 210. 80 6 Mo. App. 454. 93 38 Barb. 574. 62 30 N. Y. 594. 62 6 Barb. 330. 81 3 E. D. Smith, 599. 88 85 N. Y, 614, 91 xxn CASES CITED. Meyers V. Trumble, Middle Dist. Bk. matter of, Miller v. Franklin Bk. Miller v. Freeborn, Miller v. Losee, Mills V. Pierson, Mills V. Rosenbaum, Milnor v. Metz, Mitchell V. Oldfield, Moody V. Steele, Moore v. Clementson, Moore v. Littel, Moore v. Mayor, Morgan v. Spangler, Morrell v. Morrell, Mosher v. Cochrane, Mowry v. Peet, Murden v. Priment, Murray v. Deyo, Myers v. Davis, Mynderse v. Snook, N. Nash V. St. Paul, Nat. Bk. V. Boylan, Nat. Bk. V. Lewis, Nat. Bk. V. Lewis, Nat. Fire Ins. Co. v. McKay, Nelson v, Edwards, Nemetty v. Naylor, New Amsterdam Bk. v. Tortler, New Haven Co. v. Ouintard, New York Ice Co. v. Parker, Nicholv. N. Y. & Erie Ry. Nooner v. Short, Norden v. Jones, •Norton v. Dryfuss, O. 3 E. D. Smith, 607. 88 I Paige, 585. 38 1 Paige, 444. 24, 38 4 Robt. 608. 12 9 How. 356. 91 2 Hilt. 16. 25, 55 103 Ind. 152. 58 t6 Peters, 226. 27 4 T. R. 123. 74 II Civ. Pro. 205. 67, 70 2 Camp. N. P. 22. 67 41 N. Y. 66. 63 8N. Y. no. 64 20 Ohio St. 38. 8 3 Barb. 236. 43 21 Week. Dig. 545. 53 88 N. Y. 453- 75 I Hilt. 75. 5,32,35,41,56, 57 10 Hun. 8. 67, 72 22 N.-Y. 489. 66,67,68, 70 1 Lans. 488. 24, 53 11 Minn. 174. 98 2 Abb. N. C. 216. 23 81 N. Y. 15. 2, 9, 38 7SN.Y. 516. 38 21 N. Y. igi. 6, 20, 48 40 Barb. 279. 68 63 How. 387. 10 4 Abb. N. C. 215. 38 37 How. 29. 2 8 Bosw. 688. 25 12 N. Y. 121. 63 20 Kas. 624. 94 33 Wis. 600. 58 51 Sup'r 491. 58 O'Bierne v. Lloyd, 43 N. Y. 248. 76 O'Blenis v. Karing, 57 N. Y. 649. 25 O'Connor v, Varley, jpGray, 231, 77 CASES CITED. XXlll Ogden V. Coddington, Olmstead v. Keyes, Ormsbee v. Brown, Osborn v. Ethridge, P. Paige V. Carter, Paige V. Willett, Parmelee v. Cameron, Parsons v. Sutton, Patterson v. Patterson, Patterson v. Richards, Peabody v. Beach, Peabody v. Bloomer, Peck V. Minot, Peck V. Parchin, Peckham v. Leary, Pendergast v. Greenfield, People V. Tanker, People V. Booth, . People V. Bradreth, People V. Dayton, People V. Dennison, People V. Tioga, Philbert v. Burch, Pierce v. Tiersch, Piatt V. Stout, Pond V. Smith, Powers V. Central Bk. Pratt V, Collins, Prindle v. Caruthers, Proctor V. Cole, Prouty V. Eaton, Purple V. Hudson River Ry. 2 E. D. Smith, 317, 3, 6, 8, 40, 54, 76 85 N. Y. 593. 63 50 Barb. 436. 91 13 Wend. 339. 33>4i,4S> 47 64 Cal. 489. 34 38 N. Y. 28. 3 41 N. Y. 392. 63, 64 66 N. Y. 92. 7 59 N. Y. 574. 8, 22 22 Barb. 143, 7, 32 6 Duer. 53. 24, 52 5 Duer. 678. 24, 52 4 Rob. 323. 9 52 Iowa, 46. 85 6 Duer. 494. 47 40 Hun, 495. 73 8 How. 261. 100 32 N. Y. 397. 100 3 Abb. N. S. 224. 25, 26 , 27, 55 50 How 143. 65 84 N. Y. 272. 1 1 19 Wend. 73. 64 4 Mo. App. 470. 92 40 Ohio St. 168. 49 14 Abb. 178. 65 4 Conn. 297. 74 18 Geo. 638. 27 20 Hun, 126. 23, 35 IS N. Y. 425- 63 104 Ind. 373. 24 41 How. 409. 6, 20 4 Duel . 74. 62 a- Quintard v. Secor, 3 E. p. Smith, 614. CASES CITED. R. Rabone v. Williams, 7 Tr. R. 360. 67 Rait V. McAllister, 8 Wend. 109. 58 Ransom v. McCless, 64 N. C. 17, 73 Rawson v. Copeland, 2 Sandf. Ch. 251. 79 Raymond v. Baker, 66 Barb. 605. 99 Reed v. Higgins, 86 Ind. 143. 100 Reed v. Lawson, 15 Barb. 9. 49 Reeves v. Chambers, 67 Iowa, 81 26 Reilly v. Byrne, I Civ. Pro. 201. 95 Reilly v. Rucker, 16 Ind. 303. 91 Resch V. Senn, 31 Wis. 138. 8, 15, 16 Revere Ins. Co. v. Chamberlin, 56 Iowa, 508, 3°, 44 Rice V. O'Connor, 10 Abb. 362. 34 Richmond v. Lattin, 64 Cal. 273. 48 Richtmeyer v. Remsen, 38 N. Y. 206. 61 Risley v. Carll, 1 Law. Bui. 52. 92 Ritchie v. Garrison, 10 Abb. 246. 83 Robbins v. Watson, 22 How. 293. 76, 89 Roberts v. Carter, 38 N. Y. 107. 68, 70 Roberts v. Fowler, 3 E. D. Smith, 632, 65 Roberts v. Terry. 38 N. Y. 107. 36 Robinson v. Howes, 20 N. Y. 84. 8, 22, 71 Robinson v. Safford, 57 Me. 163. 34 Robinson v. Weeks, 6 How. 161. 61 Rodde V. Ruckgaber, 3 Duer. 648. 2 Rollin V. Cross, 45 N. Y. 766. 65 Root V. Taylor, 20 Johns. 137. 80 Rosenberg v. Block, 50 Sup'r 357. 23 Ruppert V. Haug, 87 N. Y. 141. lO Russell V. Meacham, i6 How. 193, 88 Ryan v. Dumphy, 4 Mont. 342. 2 2 S?, Ryle v. Harrington, S. Sale v. Bugher. 4 Abb. 421. 83 24 Kas. 432, IS Sanford v. Travers, 40 N. Y, 140. 3 Savery v. Savery, 3 Iowa, 274. 14 Scantlin v. Allison, 12 Kas. 85, 54 Scheunert v. Koehler, 203 Wis. 523, 41, 45 CASES CITED. XXV Schmidtz v. Schmidtz, Schnarderbeck v. Worth, Schwan v. Mut. Trust Ins. Co. Selleck v. Griswold, Seward v. Terrence, Seymour v. Davis, Seymour v. Dunham, Shelly V. Vandarsdoll, Sherwood v. Barton, Shull V. Green, Shutz V. Hamilton, Sickels V. Patterson, Sieman v. Schurck, Sigler V. Hidy, Simkins v. Railroad, Simmons v. Kayser, Sinclair v. Fitch, Slawson v. Conkey, Slone v. Slone, Smith v. Dukes, Smith V. Dunning, Smith V. Ewer, Smith V. Felton, Smith V. Fox, Smith V. Lookabill, Smith V. N. Y. & N. H. Ry. Smith V. Olssen, Smith V. Smith, Smith V. VanLoan, Solomon v. Holt, Sorley v. Brewer, Spaulding v. Vandercook, Spencer v. Babcock, Springer v. Dwyer, Spure V. Snyder, Standley V. N. W. Ins. Co. Starbird v. Barrows, Starrettv. Houston, State V. B. & O. Ry, State V. Leckie, 29. 19 Wis 207. 8 Abb. 37. 28, 32, 35 9 Civ. Pro. 82. 49 Wis. sg. 3 Hun. 220. 2 Sandf. 239. 24 Hun. 93, 23 Ind. 543. 28, 23 How. 533. 49 Barb. 311. 3 Daly, 462. 14 Wend. 257. 29 N. Y. 598. 56 Iowa, 508. 20 S. C. 269. 43 Sup'r 131, 3 E. D. Smith, 677. 10 How. 57. 2 Met. (Ky.) 339. 5 Minn. 373. 61 N. Y. 249. 22 Penn. 116. 43 N. Y. 419. 48 N. Y. 674. 76 N. C. 465. 28 Barb. 605. 4 Sandf. 711. I Sheld. 238. 16 Wend. 659. 3 E. D. Smith, 139. 1 Daly, 79. 2 Wend. 431, 22 Barb. 326. 50 N. Y. 19. IS, 35 Conn. 172. 95 Ind. 254. 28 43 N. Y. 200, 29 14 Tex. 153, 50 36 Md. 344. 27 14 La, An, 636, 27 9 56 97 18 2 5 71 57 72 93 86 76 10 30, 51 29 15, 16 83 88 36, 41 7 2 34 74, 75 75 53 62 88, 89 64 72 69 64 5, 45 83 25, 55 46 xxvi CASES CITED. State V. Williams. Stephens v. Bank, Stewart v. Anderson, Stewart v. Atlantic &c. Co. Stewart v. Wallace, Still V. Hall, St. John V. Aril. Mut. Life Co. St. John V. Thorne, St. Michaels' Ch. v. Behrens, Stoddard v. Treadwell, Stover V. Egleshimer, Stuart V. Atlantic Co. Stuart V. Hines, Swathmey v. Cheatham, X. 77 Mo. 463. 94 4 Colo. 664. 2, 22 6 Cranch 203. 68 I Law Bui. 18. 33 30 Barb. 344. 93 20 Wend. 51. 31, 50 13 N. Y. 31. 63 2 Abb. 166. 88, 89 10 Civ. Pro. 181. 26 26 Cal. 308. 9, 31, 5° 4 App. Dec. 309. 63 I Law. Bui. 18. 58 33 Iowa, 60. 8 21 Hun, 576. 12 Taggard v. Curtenius, 15 Wend. 155. 31, 5° Taylor v. Mayor, 82 N. Y. 10. 34, 52 Taylor v. Root, 4 Keyes, 335. 33, 41, 45 Tesser v. Englehart, 18 Neb. 167. 34 Tewksbury v. Brown, 48 Wise. 581. 65 Thomas v. Loaners' Bk. 38 Sup'r 466. 92, 93, lOI Thompson v. Kessel, 30 N. Y. 383. 14, 45 Thompson v. Whitmarsh, 100 N. Y. 35. 79, 80 Till V. Rood, 15 Johns. 230, 5, 31, 45 Thurman v. Wells, 18 Barb. 500. 62 Tracey v. Humphreys, 5 How. 155. 88 Trannelle v. Harrell, 4 Pike, 602. 24 True V. Triplett, 4 Met. (Ky.) 58. 22 Turner v. Simpson, 12 Ind. 413. 91 V. Union Bank v. Carr, Union Ins. Co. v. Howes, United States v. Collier, United States v. Eckford, United States v. Robeson, United States Trust Co.v. Harris, 2 Bosw Utica Ins, Co. V, Power, 49 Iowa, 359, IS 124 Mass. 470. 4 3Blatch, 325. 27 6 Wall. 484 3, 27 9 Peters, 319. 27 2 Bosw. 75. 38 3 Paige, 36s. 66 CASES CITED. xxvn V. Vail V. Jones, VanAllen, matter of. VanBrunt v. Day, VanEpps v. Hairison, VanValen v. Lapham, Vassear v. Livingston, Vaun V. Rouse, Venable v. Haslin, Vogel V. Babcock, "W. Waddell v. Darling, Wadley v. Davis, Wagner v. Stocking, Wakeman v. Everett, Waldron v. Baker, Waldron v. Willard, Walker v. Shoemaker, Walker v. Woolen, Wall v. Williams, Walsh V. Hall, Walter v. Fowler, Wandell v. Edwards, Ward V. Craig, Washburn v. Roberts, Waterbury v. Lanber, Weaver v. Penny, Weeks v. Pryor, Wehle v. Butler, Welsh V. Hazelton, Wells V. Stewart, Westlake v. Bostwick, Westlake v. Degrau, Wheelock v. Pacific Gas Co. White V. Joy, White V. Miller, White V. Word, Whitelegge v, DeWitt, 31 Ind. 467. 51 37 Barb. 225, 38 81 N. Y. 251, 13, 18, 49 5 Hill, 63. 5, 45, 49 S Duer, 689, 15, 34, 52, 73 13 N. Y. 249. 7, IS, 23, 40, 9'- 97 94 N. Y. 401. 13 [ Civ. Pro. 215, 34, 70 I Abb, 176. 62 SI N. Y. 327. 7, 24, 63 Barb. 500. 22 Ohio St. 297. 41 Hun 278. 4 E. D. Smith, 440. 17 N. Y. 466. 4 Hun, 579. 54 Ind. 164. 81 N. C. 477. 66 N. C. 233. 32, 4S, 8s N. Y. 621. 5 Hun, 498. 87N. Y. SSS- 72 Ind. 213. 51 Conn. 171. 21, 17 111. App. 628. 27 Barb. 79. 43 How. s. 14 How. 97. 3 Barb. 40. 3S Sup'r 256. 25 Wend. 669. SI Cal. 223. 13 N. Y. 83. 47 Ind. 385. 22 Ala. 442. 12 Daly, 319. 42 54 6 80 66 62 46 94 81 56 8S 85 15 28 2i> 55 3 72 15 9 69 68, 70 42, 47 7, 41 lOI 28 79 37 xxvm CASES CITED. Whitman v. Horton, 46 Sup'r 531. 12 Whitman v. Lake, 32 Wis. 189 2 Whitney v. Beckwith, 31 Conn. 596. 25 Wilder v. Boynton, 6^ Barb. 547. 1, 12, 16 Wilhite V. Hamrick, 92 Ind. 594. TOO Williams v. Bitner, I Lans. 200. 105 Williamson v. Boyd, 75 Ind. 286. 28 Williams v. Willis, iS^Abb. N. S. II. 99 Williams v. Richmond, 9 How. 522. 85 Willover v. Olean, 10 Civ. Pro. 80. 67,69 71, 100 Willson V. Harris, 68 Iowa, 443, 92 Wilson V. Fuller, 9 Kas. 177. 97 Wilson V. Hughes, 94 N. C. 182. 39 Wilson V. Lewistown, I Watts & S. 428. 55 Wiltsie V. Northan, 3 Bosw. 162. 1°, 12 Winans v. Peebles, 32 N. Y. 423. 64 Wolf V. Anonymous, 13 How. 84. 6, 7 Wood V. Carr, 3 Story, 366. 69 Wood V. Mayor, 73 N. Y. 556. 57 Woodhouse v. Woodhouse, II Week. Dig. 24 I, 82 Woodruff V. Garner, 27 Ind. 4. 8 Woodward v. Sloan, 27 Ohio St. 592. 94 Woody V. Gordan, 69 N. C. 189. II Wright V. Booth, 69 N. Y. 620. 100 Wright V. Wright, 54 N. Y. 437. 2 Xenia Bank v. Lee, 7 Abb. 372. w 16, 52, 83 Zabriskie v. Smith, 13 N. Y. 322. 66, 68 COUNTER-CLAIM UNDER THE CODE. SECTION 500. THE ANSTITER. "Wliat it must contain. The answer of the defendant must contain : 1. A general or specific denial of each material alle- gation of the complaint controverted by the defendant, or of any knowledge or information sufficient to form a belief. 2. A statement of any new matter constituting a defense or counter-claim, in ordinary and concise lan- guage, without repetition. Code of Procedure, § 149. ISe-w matter. The " new matter " which the defendant may plead in defense of the action, consists of any allegations, which, admitting that the plaintiff once had a cause of action, tend to show that it no longer exists. Gilbert v. Cram, 12 How, 455. Bellinger v. Craigue, 31 Barb. 534. Carter v. Koezley, 9 Bosw. 583. Goddard v. Fulton, 21 Cal. 430. McKyring v. Bull, 16 N. Y. 297. It means matter which was not set up in the com- plaint, Manning v. Winter, 7 Hun, 482. 2 COUNTER-CLAIM And, all averments that, without traversing the alle- gations of the execution of a contract sued upon, show that it was illegal in its inception and never of any bind- ing effect. Wright V. Wright, 54 N. Y. 437. Smith V. Dunning, 61 N. Y. 249. Maule V. Crawford, 14 Hun, 193. Dillaye v. Parks, 31 Barb. 132. Such as usury, which cannot be made the subject of counter-claim, but falls within the clause relating to new matter. Nat. Bank v. Lewis, 81 N. Y. 15. Farmers' Bank v. Lang, 22 Hun, 372. Stephens v. Bank, 4 Colo. 664. Or, facts showing incapacity to enter into the con- tract, or the execution of it under circumstances that render it voidable. Baker v. Bailey, 16 Barb. 54. Whitman v. Lake, 32 Wis. 189. Averments setting up an extinguishment of a con- tract after its execution, as by a discharge by payment or release, are new matter. Seward v. Terrance, 3 Hun, 220. Beaty v. Swarthaut, 32 Barb. 293. Clifford V. Dunn, 81 N. Y. 52. Cornell v. Dakin, 38 N. Y. 253. New Haven Co. v. Quintard, 37 How. 29. Mere recital of evidential facts, which, if proven, would sustain a defense, is not a statement of new matter constituting a defense under this section. Rodde v. Ruckgaber, 3 Duer, 648. Unless such new matter is properly pleaded, the defendant will not be permitted to offer evidence of facts that would constitute a bar to the action. Baker v. Bailey, 16 Barb. 54. Sanford v. Travers, 40 N. Y. 140, Paige V, Willett, 38 N. Y, 28, UNDER THE CODE. 3 COUNXER-CIvAIM. Mature of tlie remedy. The remedial right, designated in the Codes of vari- ous States as counter-claim, was unknown as such to the common law. The earliest statutes of New York which permitted the adjustment in a single suit of demands between "two or more persons dealing together," were modelled upon the English statute of 2 Geo. II, ch. 22, § 13, which pro- vided for a set-off of "mutual debts " ; and the similarity between those acts was such that English decisions were relied upon for the interpretation of the early statute of this State. Gordon v. Bowne, 2 Johns. 150. U. S. V. Eckford, 6 Wallace, 484. This statute regulating and defining set-off was the first innovation upon the common law, and it was deemed to remain in force, notwithstanding the enactment of the code of procedure, except so far as the latter was incon- sistent with it. Comm's' Report, 1850. Set-off*. As it then existed and is still recognized in the absence of code enactments, set-off was only applicable to demands which were certain in their nature and did not include claims for unliquidated damages. Gordon v. Bowne, supra. Batteman v. Pierce, 3 Hill, 171. Ogden V. Coddington, 2 E. D. Smith, 317. Weaver V. Penny, 17 111. App. 628. Boyer v. Clark, 3 Neb. 161. Union Ins. Co., v. Howes, 124 Mass. 470. Barry v. Cavanagh, 127 lylass. 394. Or to cases where the damages were capable of liqui- dation by the application of some known measure or standard. Hunt V, Gilmore, 59 Pa, St., 45°: 4 COUNTER-CLAIM And it could only be interposed where both the claims were certain and liquidated, as well as mutual. Therefore, a demand which was certain could not be pleaded by way of set-off to an unliquidated claim ; as, to a claim arising upon an open policy of insurance. Gordon v. Bowne, 2 Johns., 150. It was strictly a money demand in favor of defendant against the plaintiff, and must be a debt that existed in- dependently of the cause of action sued upon. Boston Silk Mills v. EuU, 37 How., 299. The right of set-off being a sort of natural equity that cross demands should compensate each other by deduct- ing the lesser from the greater, that the difference may be regarded as the debt. Channing v. Moore, McAdam, C. J., Daily Reg., Feb. 7, 1888. Recoupment. Prior to the enactment of the code provisions, re- coupment was construed as a right which the defendant had to reduce or cut down the amount of the plaintiff's claim, and implied the existence of certain facts arising from the transaction, for which a recovery was sought, whereby the defendant was entitled to lessen or extin- guish the amount of the demand agamst him. Boston Silk Mills v. Eull, 37 How. 299. Seymour v. Davis, 2 Sandf . 239, Deming v. Kemp, 4 Sandf. 149. It did not always imply a subsisting, actionable claim for damages. Kneedler v. Sternburgh, 10 How. 67. And did not authorize an affirmative judgment for the defendant, but simply a reduction of the damages demanded against him. Batterman v. Pierce, 3 Hill, 171. UNDER THE CODE. 5 Only circumstances arising out of tiie transaction upon whicii the action was predicated, whereby defen- dant had sustained loss, were available to him in recoup- ment of the plaintiff's demand and any facts which tended to that end might be set up. Murden v. Priment, i Hill. 75. Martin v. Hill, 42 Ala. 275. Such as damages arising from the fraudulent misrep- resentations of plaintiff in a sale, in regard to the quality, quantity or value of the property, either personal or real. Spaulding v. Vandercook, 2 Wend. 431. Benton v. Stewart, 3 Wend. 236. Lewis V. Cosgrove, 2 Taunt. 2. Allaire v. Whitney, i Hill, 414. VanEpps v. Harrison, 5 Hill, 63. Bleecker v. Vrooman, 13 Johns. 302. Till v. Rood, 15 Johns. 230. Or, for defective workmanship or materials in a build- ing erected by plaintiff under a contract upon which he seeks to recover. Foster v. Butler, 7 East. 479. Ives V. VanEpps, 22 Wend. 155. Grant v. Button, 14 Johns. 377. Or, damages resulting from negligence or want of skill in a physician or attorney, in the performance of duties for which he was employed, may be recouped in an action for services. Gleason v. Clark, 9 Cow. 57. Fleming v. Niagara, 12 Wend, 246. Hopping V. Quin, 12 Wend, 5(7. Ogden V. Coddington, 2 E. D. Smith, 317. So, of damages for breach of an agreement to keep in repair, in an action for use and occupation. Darwin v. Potter, 5 Denio, 306. Ethridge v. Osborn, 12 Wend, 529. Westlake v. Degraw, 25 Wend, 669, 6 COUNTER-CLAIM Under the codes of some States the distinction be- tween recoupment and set-off is preserved, and the appli- cation is more narrow than that permitted by the code of New York ; recoupment partaking of the nature of the common law right of reduction of damages. Hudson V. Snipes, 40 Ark. 75. Wagner v. Stocking, 22 Ohio St. 297. Carver V. Shelley, 17 Kan. 472. Counter-claim. The counter-claim, as recognized in the statutory en- actments of the various States, which have adopted, in substance, the provisions of the New York Code, is a claim existing in favor of the defendant counter to that upon which recovery is sought and implies the existence of cross demands. Kneedler v. Sternbergh, 10 How. 67. Gage V. Angell, 8 How. 336. Wolf V. Anon, 13 How. 84. Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191. Prouty v. Eaton, 41 Barb. 409. Mattoon v. Baker, 24 How. 329. Belleau v. Thompson, 33 Cal. 495. Matteson v. Ellsworth, 28 Wis. 254. Its object is to prevent litigation by enabling the parties to arrive at an adjustment of their mutual de- mands in a single action. Waddell v. Darling, 51 N. Y. 327. Allen v. Shackelton, 15 Ohio St. 145. It includes all the remedial rights that were embraced in both set-off and recoupment. Boston Silk Mills v. Eull, 37 How. 299. Wilder v. Boynton, 63 Barb. 547. Clinton v. Eddy, 54 Barb. 54. Pattison v. Richards, 22 Barb. 143. Vassear v. Livingston, 13 N. Y. 256. Beardsley v, Stover, 7 How. 294. UNDER THE CODE. 7 And has extended set-off so as to include unliquidated damages. Lignot V. Redding, 4 E. D. Smith, 285. Parsons v. Sutton, 66 N. Y. 92. Wheelock v. Pacific, 51 Cal. 223. And has so broadened recoupment as to permit an allowance of damages arising from the transaction sued upon, not only to defeat the claim, but to give defendant an affirmative judgment. Boston Silk Mills v. Eull, 37 How. 299. Mason v. Heyward, 3 Minn. 182. Smith V. Dukes, 5 Minn. 373. It is much more extensive than set-off and recoupment and embraces all claims which a defendant may have against a plaintiff in the nature of a cross demand or action. Wolf v. Anon, 13 How. 84. Foster v. Coe, 4 Lans. 53. Including equitable as well as legal rights and all the essential elements of a cross bill in equity. > Morgan v. Spangler, 20 Ohio St. 38. Currie v. Cowles, 6 Bosw. 453. Woodruff v. Garner, 27 Ind. 4. For under the provisions of the present code, a de- fendant is not driven to his remedy in equity, the counter- claim affording all the relief which could be obtained in a separate action at law, or a bill or cross-bill in equity. Ogden v. Coddington, 2 E. D. Smith, 317. Gleason v. Moan, 2 Duer. 642. Hicksville R. R. v. Long Island R. R., 48 Barb. 255. The admissibility of a counter-claim may be deter- mined by the enquiry whether the allegations of the defendant would constitute a cause of action, if set up in a complaint. 8 COUNTER-CLAIM Patterson v. Patterson, 59 N. Y. 574. Robinson v. Howes, 20 N. Y. 84. Denniston v. Trimmer, 27 Hun, 393. Holzbauer v. Heine, 37 Mo. 443. As it must contain allegations of all essential facts upon which an action could be maintained. Resch V. Senn, 31 Wis. 138. And, a pleading which seeks to bar the plaintiff's re- covery and does not affirmatively setouta cause of action, does not constitute a counter-claim ; no single pleading can answer the double purpose of an answer and a counter-claim. Campbell v. Routt, 42 Ind. 410. Blakely v. Boruff, 71 Ind. 93. Gaff V. Green, 88 Ind. 122. Where matter might be used either in bar, or to fur- nish the basis of a counter-claim, the pleader must not leave his intentions in doubt. Stuart V. Hines, 33 Iowa, 60. Haywood v. Seeber, 61 Iowa, 574. Hinkle V. Margenun,- 50 Ind. 240. Gabe v. McGinnis, 55 Ind. 372. Hadley, v. Prather, 64 Ind. 137. Douthitt V. Smith, 69 Ind. 463. Nor can an answer, which contains allegations which constitute a defense, be regarded as a counter-claim simply because it concludes with a demand for an affirmative judgment. Resch V. Senn, 31 Wis. 138. McConike v. Hollister, 19 Wis. 269. Therefore, an answer to a suit on a promissory note, that it was obtained by fraud and which demands a deliv- ery of the note to defendant, does not constitute a counter-claim. Resch V, Senn, supra. UNDER THE CODE. g Nor, in an action to compel satisfaction of certain judgments, does an answer fulfil the office of a counter- claim, which alleges that a deed was given in settlement of the judgments and which demands a cancellation of the deed. Dietrich v. Koch, 35 Wis. 618. Nor, does an answer in foreclosure of mortgage, which attacks the validity of the instrument and sets up title under a subsequent mortgage. Caryl v. Williams, 7 Lans. 416. A counter-claim cannot be based upon averments which only tend to show that plaintiff never had a cause of action ; as a pleading which sets up usury. Schmitz v. Schmitz, 19 Wis. 207. Equit. Life Ass. Co. v. Cuyler, 75 N. Y. 511. National Bank v. Lewis, 81 N. Y. 15. Farmers' Bank v. Lang, 22 Hun, 372. Nor, in a proceeding to enforce a mechanics' lien, can it be based upon allegations that the premises sought to be charged are exempt as a homestead. Englebrecht v. Rickert, 14 Minn. 140. It must, in fact, constitute a complete cause of action in favor of the defendant against the plaintiff. Cragin v. Lovell, 88 N. Y. 258. Election bet-ween counter-claim and action. A defendant is not bound to avail himself of this remedy, and may, if he so elect, pursue his rights in an independent action. Halsey v. Carter, i Duer. 667. Welch v. Hazelton, 14 How. 97. Gillespie v. Torrance, 25 N. Y. 306. Peck v. Minot, 4 Rob. 323. Hobbs v. Duff, 23 Cal. 629. Stoddard v, Treadwell, 26 Cal. 308, 10 COUNTER-CLAIM And such was the rule previous to the passage of the code ; the contrary rule being applicable only to justices' courts. Mclntyre v. N. Y. Central, 43 Barb. 533. So in a suit by an agent against his principal for money lent, the latter is not obliged to set up as counter- claim a demand for money collected by the agent and not accounted for. Brown v. Gallaudet, 80 N. Y. 413. And so it is no valid objection to an action that it might have been set up as a counter-claim in a pending suit. Lignot v. Redding, 4 E. D. Smith, 285. The fact that an attachment has been granted in the action does not vary the rule. Ruppert v. Haug, 87 N. Y. 141. And a defendant in an ejectment suit, though entitled to set up an equitable title, may come into court with a separate bill. Siemon v. Schurck, 29 N. Y. 598. A claim for damages, upon which suit has been brought, may still be set up in an action subsequently commenced against that plaintiff by the defendant. Wiltsie V. Northan, 3 Bosw. 162. But a claim cannot be made the subject of a separate action upon a contract that has been substantially adjudi- cated upon in a previous suit, although not there pleaded as a counter-claim. Nemetty v. Naylor, 63 How. 387. In an action upon a judgment a demand that existed at the time of the commencement of the original action, and might have been pleaded therein, may be set up as a counter-claim. Folsom V. Winch, 63 Iowa, 477. UNDER THE CODE. ii The effect of the interposition of a counter-claim and a judgment thereon, in the action, is the same as an ad- judication in a separate suit, and the defendant is estopped from assertmg the claim in any other form. Hatch V. Benton, 6 Barb. 28. Davidson v. Alfaro, 6 Week. Dig. 455. Inslee v. Hampton, 11 Hun, 156. But a claim that has been pleaded in set-off and ex- cluded so that it does not enter into the litigation, may afterwards be asserted, either as a counter-claim or a separate action. Ives V. Goddard, i Hilt. 434. People V. Dennison, 84 N. Y. 272. The pendency of an action in which a counter-claim is pleaded will prevent the maintenance of an independ- ' ent action thereon. Woody V. Gordon, 69 N. C. 189. Harris v. Hammond, 18 How. 123. The right to plead a counter-claim may be waived by the express agreement of the parties like other causes of action. Gutchess V. Daniels, 49 N. Y. 605. But a waiver will not be implied from neglect to seasonably assert it. Folsom V. Winch, 63 Iowa, 477. In an action against a physician for malpractice, a judgment rendered in a previous suit in favor of defen- dant for the professional skill and services, is a bar to the suit for malpractice, even though it was not set up as a counter-claim. Bellinger v. Craigue, 31 Barb., 534. Discontinuance of Counter-claim. When a counter-claim has been presented and issue has been joined thereon, neither party to the action can 12 COUNTER-CLAIM, discontinue without consent of the other, and either may insist upon a full determination of the issues raised. Whitman v. Horton, 46 Supr. 531. Swathmey v. Cheatham, 21 Hun. 576. An application for such discontinuance must be made to the court, and it is matter of discretion whether it be granted or refused. Geenia v. Keap, 66 Barb. 245. Such discretion will not be exercised to permit a dis- continuance against the objection of the plaintiff when a consideration of the counter-claim is necessary to a proper determination of the action, Whitman v. Horton, 46 Supr. 531. Miller v. Freeborn, 4 Robt. 608. Wilder v. Boynton, 6^ Barb. 547. As in an action for an accounting, when the claim set up in the answer arose from the transaction in which the accounting is asked. Whitman v. Horton, supra. The effect of a discontinuance of the suit, without an order of court, or the consent of the plaintiff, is to entitle the defendant to judgment for the relief demanded to the counter-claim. Lawrence v. Bank of Rep., 3 Rob. 142. Cockle V. Underwood, i Abb. i. When a claim is the subject of a counter-claim and has been set up as a separate action at the same time, the defendant may be compelled to elect which remedy he will pursue. Wiltsie V. Northan, 3 Bosw. 162. Collyer V. Collins, 17 Abb. 467. Gillespie v. Torrance, 25 N. Y. 306. Fabricotte v. Launitz, 3 Sand. 743. Harris v. Hammond, 18 How. 123. UNDER THE CODE. 13 The motion to compel the election should be made in the independent action, and not in the suit where the counter-claim has been pleaded. Farmers' Loan and Trust v. Hunt, i C. Rep. (N. S.) I. An objection to the counter-claim cannot be made for the first time on appeal. Gleadell v Thompson, 56 N. Y. 194. Vaun V. Rouse, 94 N. Y. 401. But should be made before proceeding to trial. Collins V. Swain, 7 Robt. 94. Construction of tbe Statute. The provisions relating to counter-claim should re- ceive a liberal interpretation, to the end that controver- sies between the same parties and concerning the same subject matter may be adjusted in one proceeding. Glen and Hall Co. v. Hall, 61 N. Y. 226. Carpenter v. Manhatten Co. 22 Hun. 49. VanBrunt v. Day, 81 N. Y. 251. The rule in regard to this remedy will be at times en- larged, when it is necessary, in order to prevent injustice; but will never be extended beyond its strict legal limits when the extension will work injustice to a plaintiff pos- sessing a superior equity requiring protection. Channing v. Moore, McAdam, C. J., Daily Reg., Feb. 7, 1888. And a waiver will, therefore, be implied on the part of the plaintiff, when he proceeds to trial without objec- tion to the claim set up against him, even though the claim arose after the commencement of the action. Ashley v. Marshall, 29 N. Y. 494. So, in an action against a partnership, sued by the firm name, and in which only one appeared, the court permitted an amendment after judgment, in order to en- 14 COUNTER-CLAIM able the other partners to come in and set up a counter- claim and thus terminate the controversy in a single action. Thompson v. Kessel, 30 N. Y. 383. The design of the code being to so enlarge the scope of the old rule relating to set-off and recoupment, as to authorize the application of equitable principles. Carpenter V. Manhatten Co., 22 Hun. 49. Commr's. Report, 1850, § 646, note. But equity will not extend the legal doctrine of set- off where the indebtedness is not clearly shown, and where an adequate remedy exists at law. Armstrong v. McKelvey, 39 Hun. 213. Pleadirigf. The counter-claim must be pleaded in accordance with the laws of the forum, and without regard to the laws governing the place -where the contract, upon which it is based, was entered into. Davis V. Morton, 5 Bush, (Ky) 160. Savery v. Savery, 3 Iowa, 274. And the law in force at the time of the commence- ment of the action must govern the remedy. Jordan v. Shoe &c. Bank, 74 N. Y. 467. A cause of action, which is local in its nature, cannot be set up in another State; the counter-claim must present a complete cause of action in the jurisdiction in which it is asserted. Cragin v. Lovell, 88 N. Y. 258. So a claim for waste committed upon realtv out of the jurisdiction cannot be set up here. Cragin v. Lovell, supra. As the counter-claim is practically a cross action, it must contain all the allegations that would be necessary UNDER THE CODE. 15 to sustain a complaint in behalf of defendant, as distinctly and specificially as if a recovery was sought in a separate action. Vassar v. Livingston, 13 N. Y. 248. VanValen v. Lapham, 5 Duer, 689. Union Bank v. Carr, 49 Iowa, 359. Sale V. Bugher, 24 Kas. 432. Allen V. Douglass, 29 Kas. 412. Garrett v. Love, 89 N. C. 205. Must aver sufficient facts to show upon the face of the pleading that defendant is entitled to the judgment which he demands against the plaintiff. Branham v. Johnson, 62 Ind. 259. Must allege that the demand is in favor of the defen- dant and existed at the commencement of the action. Bates V. Rosekrans, 37 N. Y. 409. Gannon v. Dougherty, 41 Cal. 661. It must show unequivocally that it is intended as a counter-claim, and not as a mere plea in bar. Clough V. Murray, 19 Abb. 97. Wehle V. Butler, 43 How. 5. Resch V. Senn, 31 Wis. 138. Union Bank v. Carr, 49 Iowa, 359. In order that the adverse party may be properly and seasonably advised of the nature of the claim against him, he is entitled to an explicit statement. Equitable Life Ass. Co. v. Cuyler, 75 N. Y. 511. Simmons v. Kayser, 43 Supr. 131. While it may not be necessary to use the word " counter-claim," the pleading must clearly show the pur- pose for which it was intended. Union Bank v. Carr, 49 Iowa, 359. And this omission, when facts have been properly pleaded, has been frequently regarded as immaterial. Springer v. Dwyer, 50 N. Y. 19, Ward V, Craig, 87 N. Y. 555. i6 " COUNTER-CLAIM, A pleading which has been set up as a " first defense," and proven to be insufficient for that purpose, cannot be afterwards treated as a counter-claim ; a defendant cannot thus mislead his opponent, for the code intends that plain- tiff shall have reasonable notice when a personal claim is made against him. Simmons v. Kayser, 43 Supr. 131. And generally, an answer upon a pleading as a "de- fense" and demanding an affirmative judgment, is not a counter-claim. Resch v. Senn, 31 Wis. 138. Gaff V. Greer, 88 Ind. 122. Burrell v. DeGroot, 5 Duer, 379. Nor will an answer be regarded as pleading a coun- ter-claim when it simply asks that the sum mentioned be " set off " against any demand to which the plaintiff may be found entitled. American Dock Co. v. Staley, 40 Supr. 539. Though an answer which set up a breach of contract by plaintiff as a "defense," and asked that the damages occasioned thereby to the defendant might be " recouped," was holden to constitute a counter-claim. Wilder v. Boynton, 63 Barb. 547. It is not absolutely necessary that the answer con- taining the counter-claim should recite all the averments in itself ; it may refer to other portions of the pleadings in the action. Cragin v. Lovell, 88 N. Y. 258. Xenia Bank v. Lee, 7 Abb. 372. Landau v. Levy, i Abb. 376. The construction of this pleading follows the well- known rule of the common law ; that a pleading must be taken most strictly against the pleader. Burke V. Thorne, 44 Barb. 363. UNDER THE CODE. 17 And when the form of the answer would permit it to be used, either as a counter-claim or a defense, the court will construe it as intended for the latter purpose. Burke v. Thorne, supra. Bates V. Rosekrans, 23 How. 98. The ad damnum in a counter-claim stands in precisely the same position that it does in a complaint ; and de- fendant is bound by the amount demanded. Annis v. Upton, 66 Barb. 370. L,lmitatlon of Counter-claim. An alleged cause of action, upon which an action can- not be maintained, as prescribed in Title second of chap- ter four of Code of Civil Procedure, cannot be effectually interposed as a defense or counter-claim. Code Civil Pro. Section 397. A defense or counter-claim, founded upon the title to real property, or to rents or services out of the same, is not effectual, unless the person making it, or under whose title it is made, or his ancestor, predecessor, or grantor was seized or possessed of the premises in ques- tion, within twenty years before the committing of the act, with respect to which it is made. Code Civ. Procedure, §366. Verification. When the complaint is not verified and the answer sets up a counter-claim, and also a defence by way of de- nial or avoidance, the affidavit of verification may be made to refer exclusively to the counter-claim. Code Civil Pro. §527. In such case, the provisions of the Code relating to the form and construction of verified pleadings, and the manner and form of making such verification as embraced in sections 524, 525 and 526 are applicable. God? Civil Pro. §527. ? i8 COUNTER-CLAIM, An answer properly verified, which contains a coun- ter-claim, cannot be stricken out, as sham on ex parte aff- idavits. Briggs V. Freedman, 9 C. P. Rep. 73. Collins V. Swain. 7 Rob. 94. Fettrech v. McKay, 47 N. Y. 426. The sufficiency of the pleading cannot be tested upon mere affidavits ; the question should be raised by demurrer Ibid. "WaiTer of Informalities. A waiver of informality in the statements of a plead- ing, in not specifying with sufficient clearness the coun- ter-claim, will be inferred from the fact that plaintiff pro- ceeds to trial without objection. VanBrunt v. Day, 81 N. Y. 251. Isham V. Davidson, 52 N. Y. 237. Or, from the joining of issue by serving a reply. Shelleck v. Griswold, 49 Wis. 39. Cason V Cason, 79 Ky. 559. Hammond v. Terry, 3 Lans, 186. SECTION eee.5o| COUPtXER-CI^AIM DHFII^ED. The counter-claim, specified in the last section must tend in some way to diminish or defeat the plaintiffs re- covery, and must be one of the following causes of action against the plaintiff, or, in a proper case, agamst the per- son whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action ; UNDER THE CODE. 19 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. 2. In an action on contract, any other cause of action on contract, existing at the commencement of the action. This section is based upon Section 150 of the Code of Procedure. The Commissioners report to the Legislature of 1850, recomended its passage in the following form : "The counter-claim mentioned in the last section, must be one existing in favor of a defendant, and against a plaintiff, between whom a several judg- • ment might be had in the action, and arising out of one of the following causes of action : 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiffs' claim, or connected with the subject of the action : 2. In an action arising on obligation, any other cause of action arising also on obligation and exist- ing at the commencement of the action," With the substitution of "contract" for obligation in the last clause, this was introduced into the Code of Pro- cedure as section 150. Acts of 1852. Chapter 392. It was offered as the reason for this proposed amend- ment, that it was proposed "to open ihe door still wider, and to admit many cross demands now excluded," and that it was intended that the whole controversy between the parties should be settled in a single action. Corntn'rs ReportjS^o, §1646, note. 20 COUNTER-CLAIM Following the suggestions of the Commission which reported in 1873, the section was further amended by add- ing to the introductory clause, "must tend in some way to diminish or defeat the plaintiffs recovery," and also the words, "or one or more defendants between whom and the plaintiff." Acts of 1877. ch. 416. §84. Must diminisb or defeat a recoTery. In order to constitute a counter-claim, within the meaning of this section, the pleading must tend to reduce or modify the plaintiff's cause of action. Allegations that are merely in bar of the complaint, do not constitute a counter-claim. Barnes v. Gilmore, 6 Civ. Pro. 286. Leavenworth v. Packer, 52 Barb. 132. Lawrence v Bank of Rep. 3 Rob. 142. Kelsey v Tremaine, 29 How. 439. Cook V Jenkins, 79 N. Y. 575. Prouty V Eaton, 41 How. 409. It must in some way qualify the plaintiffs' claim for judgment; must show that he was not entitled to judg- ment to the amount claimed. Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191. Dietrich v. Koch, 35 Wis. 618. Mattoon v. Baker, 24 How 329. As, in a proceeding for a foreclosure of mortgage, a person against whom no personal claim is made, cannot set up as a counter-claim, that he had become the as- signee, of the plaintiffs' covenants of warranty against in- cumbrances, and had been evicted by a tax title. Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191, So, an answer in foreclosure of mortgage, which pleads the invalidity of the instrument and sets up title under a subsequent mortgage, is not a counter-claim, but an equitable defense. Caryl v. WilHams, 7 Lans. 416. Nat, Fire Ins, Co, v. McKay, sarfa. UNDER THE CODE. 21 And, in an action to compel the satisfaction of certain judgments, an answer that avers that a deed was given as a settlement of the jvidgment and demanding an afifirm- ative decree for the cancellation of the deed, does not set up a counter-claim. Dietrich v. Koch, 35 Wis. 618. But in a suit to set aside a conveyance and a contract to reconvey, on the ground that they actually constituted a mortgage to secure a usurious loan and demanding an accounting for rents and profits ; a claim by the defend- ant against the plaintiff, for rent of a portion of the prem- ises constitutes a counter-claim. Barnes v Gilmore, 6 Code Pro. 286. Allegations that property sought to be subjected to a mechanics lien, is exempt under the provisions of the homestead law, are not within this section. ' Englebrecht v. Rickert, 14 Minn. [40. And payment of incumbrances on lands of debtor, by purchaser at a judicial sale, does not tend to "diminish or defeat" the recovery of dower, so as to be pleaded against a widow's action therefor. Blakely v. Boruff, 71 Ind. 93. Nor can a personal claim against a public officer be interposed in an action brought by him in his public ca- pacity ; it does not tend to the diminition of the demand sued. Denniston v. Trimmer, 27 Hun. 393. Waterbury v. Lawlor. 51 Conn. 171. And the same rule applies to a proceeding by a mu- nicipality for the recovery of taxes. Gatling v. Carteret Co. 92 N. C. 536. 22 COUNTER-CLAIM must be a "cause of action." The cause of action which is indispensable, as the foundation of the defendants claim, must be one upon which an affirmative judgment might be rendered against the plaintiff, if made the subject of a separate suit ; and is in the nature of a cross action. Clarkson v. Manson, 60 How 45. Fettretch v. McKay, 47 N. Y. 427, Battle V. Thompson, 65 N. C. 406. Mangum v. Ball, 43 Miss. 288. It must constitute a complete cause of action, exist- ing in defendants favor at the time of the commencement of the action ; and in the tribunal in which it is set up. Cragin v. Lovell, 88 N. Y. 258. Clinton v. Eddy. 54 Barb. 54 And the inquiry whether such conditions exist, is the proper criterion by which to determine the counter-claim. Patterson v. Patterson, 59 N. Y. 574. Robinson v. Howes, 20 N. Y. 84. Therefore usury cannot be made the subject of coun- ter-claim. Equit. Life Ass. v. Cuyler, 75 N. Y. 511. Stevens v. Monongahela Bk. 4 Colo. 664. Lebanon Bk. v. Karmany, 98 Pa. St. 65. Nor can payment be so pleaded ; it being simply a defense. True V. Triplett, 4 Met. (Ky.) 58. And a claim for moneys advanced on a partnership transaction concerning which an action is pending for an accounting, and in which no balance has been found due, does not afford a cause of action that can be set off. " Channing v. Moore, Daily Reg. Feb 7, 1888. Nor can a contract for the sale of land which is void by the Statute of Frauds and upon which no action can be maintained. Ryan v. Dumphy. 4 Mont. 342, UNDER THE CODE. 23 Between w^Uat parties permissible. It is the intention of the code to confine the remedy to the parties to the record. Vassear v. Livingston, 4 Duer. 285. Gleason v. Moen, 2 Duer, 639. Though, in an action brought by a principal to re- cover for merchandise sold defendant by a person who was really acting for the plaintiff but did not disclose his agency ; and defendant dealt virith him without a know- ledge of such agency, a claim against the agent may be set up. Judson v. Stilwell, 26 How. 513. Pratt v. Collins, 20 Hun. 126. So, in a suit by a firm to recover for goods sold by one partner, who was carrying on business in his own name ; but if the fact of the partnership be known to de- fendant at the time of the purchase, a claim against the partner is not admissable. Rosenberg v. Block, 50 Supr. 357. A demand in order to be pleaded under this section, must be one that, if made the subject of a separate suit, would permit a judgment in favor of the defendant or all the defendants, against the person or persons who insti- tuted the action. Bockover V. Harris, 11 J. & S. 548. Nat. Bank v. Boylan, 2 Abb. N. C. 216. Gordon v. Swift, 46 Ind. 208. Knour v. Dick, 14 Ind. 20. So, a joint claim in favor of two of several defendants, cannot be set up, when the nature of the controversy is such that a several judgment could not be rendered. Bockover v. Harris, supra. 24 COUNTER-CLAIM, Nor, when the action is against 2i partnership, can one partner counter-claim a demand due him alone. Peabody v. Bloomer, 5 Duer. 678. • Peabody v. Beach, 6 Duer. 53. One defendant, who is sued singly, cannot plead a demand against plaintiff which is due him jointly with another. Baldwin v. Berrian, 53 How. 81. Campbell v Genet, 2 Hilt. 290. Hopkins v. Lane, 87 N. Y. 501. Proctor V. Cole, 104 Ind. 373. McConike v. Hollister 19 Wis. 269. Conversely, in an action by one member of a partner- ship, a claim against the firm is not allowable. Mynders v. Snook, i Lans. 488. One partner cannot set up a counter-claim against his co-partner, consisting of partnership transactions, un- til a final settlement is had and a balance found due. Ives V. Miller, 19 Barb. 196. Gardiner v. Fargo, 58 Mich. 72. But, when the partnership has been dissolved and a balance struck, it may be set up between the partners. Waddell v Darling, 51 N. Y. 357. But, when three of several defendants set up in their joint answer that the contract sued upon was made with them alone, they were permitted to plead a breach of that contract and claim damages resulting therefrom. Clegg V. Cramer, 32 Hun. 162. A surviving partner s indebtedness may be set up in an action by him in his capacity as survivor. Holbrook v. Lackey, 13 Met. 132. Trannelle v. Harrell, 4 Pike, 602. Miller v Franklin Bk, i Paige, 444, UNDER THE CODE. 25 A surety cannot interpose a claim in favor of his principal, in a proceeding against the former on his liabil- ity as surety. LaFarge v. Halsey, i Bosw. 171. Henry v. Daley, 17 Hun, 210. Emery v. Butler, 22 Hun, 434. People V. Brandreth, 3 Abb. N. S. 224. Lasher V. Williamson, 55 N. Y. 619. O'Blenis v. Karing, 57 N. Y. 649. In a suit by husband and wife on a note given to her before marriage the defendant cannot plead a claim for goods sold to them, and for which he would alone be legally liable. Green v. Carson, 4 Met. (Ky.) 76. Hubby v. Chaplin, 22 Tex. 582. So in a joint suit for her services a demand against the husband is not admissible. Whitney v. Beckwith, 31 Conn. 596. In an action by a corporation, a claim against all the members who compose it, can not be used as a counter- claim. N. Y. Ice Co. v. Parker, 8 Bosw. 688. An indebetedness due from a husband, who is joined as plaintiff in a suit by the wife, cannot be used as a set- off. Carpenter v. Leonard, 5 Minn. 155. Carpenter v. Wilvershied, 5 Minn. 170. Nor, if any claim arising on an independent cause of action in his principal's favor. The right to plead such claim being the personal privilege of the principal. Springer v. Dwyer, 50 N. Y. 19, Mills v. Pierson, 2 Hilt. 16. LaFarge v. Halsey, i Bosw, 171, 26 COUNTER-CLAIM Nor, can one who has bound himself as surety, to a vendor set up a breach of warranty on the part of the latter, nor that the contract was procured by fraud. Henry v. Daley. 17 Hun. 210. When a surety has received moneys as security he may be forced to account therefor to his co-surety ; but in a suit by the latter for contribution, an indebtedness to the principal from the plaintiff cannot be set up. Davis V. Toulmin, 77 N. Y. 280. In an action against a principal and surety, while an indebtedness from the plaintiff to the principal may not be available, at law, to the surety, the fact that the plain- tiff and the principal are insolvent affords an equitable pfround for the allowance of the counter-claim. Coffin v. McLean, 80 N. Y. 560. A principal and surety can counter-claim anything that principal alone might. Reeves v. Chambers, 67 Iowa, 81. A joint liability cannot be pleaded against an, endor- ser, in an action by him. Lush v. Adams, 10 Civ. Pro. R. 60. St. Michaels Ch. v. Behrans, 10 Civ. Pro. R. 181. A claim against the state, which is a proper subject of counter-claim, may be set up to reduce the amount of a demand arising upon a contract or obligation in favor of the state. People V. Brandreth, 3 Abb. N. S. 224. But an affirmative judgment cannot be rendered against the state. Battle v. Thompson, 65 N. C. 406. UNDER THE CODE. 27 The principle being, that while a counter-claim, properly speaking, as such is not pleadable, a cross-claim will be permitted, in order to arrive at an equitable liquidation of the indebtedness. Commrs. v. Northern, Bk i Ky. 174. Powers V. Cent. Bk. 18 Geo. 638. But see, as to the extent, which the general doctrine of a States exemption from liability to suit, effects even this equitable adjustment. State V. Leckie, 14 La. An. 636. State V. B. & O. Ry. 36 Md. 344. One who advances money to an officer of the state, who had no authority to borrow, cannot set up the claim in an action by the state upon a bond ; although the money so loaned was actually used for a necessary object In behalf of a state institution. People V. Bradreth, 3 Abb. N. S. 224. A claim, which is a proper subject of counter-claim, against the United States, may be set up in a suit upon an objection to reduce or extinguish the indebtedness ; and the amount of a balance, if there be one, in favor of the defendant, may be judicially determined ; but no judgment can be rendered against the United States. United States v. Eckford. 6 Wall. 484. DeGroot v. United States, 5 Wall. 431. The respondent's claim against the government may be used to reduce the claim sued upon, in accordance with principles of equity. Milnor v. Metz, 16 Peters 226. United States v. Collier, 3 Blatchf. 325. United States v. Robeson, 9 Peters 319. 28 COUNTER-CLAIM "Xransaction set forth" in complaint. The word "transaction" as here used is one of very general nature, and more extended signification than contract. It does not in common language include assault, slan- der, false imprisonment or a cheat ; but is used in appli- cation to some commercial or business negotiation ; not to a wrong caused by violence or fraud. Barhyte v. Hughes, 33 Barb. 320. This subdivision includes the remedy which was formerly embraced in recoupment ; and the principle un- derlying the doctrine of recoupment inflexibly requires that the matter, so undertaken to be set forth, should grow out ot the same transaction. Standley v. N. W. Ins. Co. 95 Ind. 254. And there must, therefore, be some legal or equitable connection between the matters pleaded as counter-claim and the matters alleged in the original pleading. Shelley v. Vandarsdoll, 23 Ind. 543. White V. Miller, 47 Ind. 385. Washburn v. Roberts, 72 Ind. 213. Williamson v. Boyd, 75 Ind. 286. In an action for assault and personal injuries, another assault and battery committed by the plaintiff upon the defendant cannot be said to arise from the same transac- tion, nor to be connected with the subject of the action. Schnarderbeck v. Worth, 8 Abb. 37. Barhyte v. Hughes, 33 Barb. 320. Nor, can damage for a libel, previously committed and which led to the assault. McDougall V. Maguire, 35 Cal. 274. UNDER THE CODE. 29 Trespasses cannot be made to compensate each other ; and the fact that one trespass is consequent upon another does not so connect it with the transaction as to enable the two to be blended in the same action. Shelley v. Vandersdoll, 23 Ind. 543. So, in a suit against a railroad company for running over and killing a horse, the company could not set up a claim for damages to the engine arising from the fact of the unlawful presence of the animal upon the track ; the defendants pleading being held to constitute a separate wrong and not arrising from the transaction set forth in the complaint. Simpkins v. Railroad, 20 S. C. 269. Nor, in an action for conversion of an animal taken up- on defendants premises, can the latter set up damages for the injuries done to his crops. Shelley v. Vandersdoll, 23 Ind. 543, In an action for injury to a canal boat hired by de- fendant, which occurred while he was endeavoring to rescue his cargo, when the boat was frozen up ; he was permitted to off-set damages to the freight occasioned by plaintiffs delay in making the trip. Starbird v. Barrows, 43 N. Y. 200. "Subject of the action." The phrase, "subject of the action," has the same sig- nification as "subject matter," of the suit. Borst V. Corey, 15 N. Y. 509. Lehmair v. Griswold, 40 Supr. 100. And must be deemed to mean the subject matter in dispute, or the facts constituting the cause of the plain- tiff's action. Chamboret v. Cagney, 41 How. 125. 30 COUNTER-CLAIM Refers to the thing or the subject to which the liti- gation has reference. Revere Ins. Co v. Chamberlain, 56 Iowa. 508. Sigler V. Hidy, 56 Iowa. 504. This subdivision plainly indicates a design to enlarge the scope of the old rule relating to set-off and recoup- ment, and to authorize an application of the equitable principle that cross actions, growing out of the same matter or controversy, shall be determined in one action. Carpenter v. Manhattan Co. 22 Hun. 49. It is either property (as illustrated by a real action,) or a violated right. G. & H. Manf'g. Co. v. Hall, 61 N. Y. 226. As, in an action to restrain the use of a trade-mark ; the trade-mark is the "subject of the action," Ibid. Or, in ejectment, the land in controversy is the subject, and facts may be pleaded showing that the equitable title is in defendant; and facts showing him to be entitled to relief. Cornelius v. Kissel, 58 Wis. 237. And, in a proceeding to set aside a conveyance, the defendant, upon this construction of the code, was per- mitted to plead that plaintiff wrongfully held him out ; and to demand a decree quieting the title. Grimes v. Duzen, 32 Ind. 361. Facts, tending to show fraudulent representations as to the title of property, may form the basis of a counter- claim to an action, on a note given therefor. Hinkle v. Margerum, 50 Ind. 240, UNDER THE CODE. 31 In action to recover for services by an attorney or physician, damages for unskillful performance of those services may be counter-claimed. Gleason v. Clark, 9 Cow. 57. Hopping V. Quin, 12 Wend. 517. Fleming v. Niagara, 12 Wend 246. And, damages may be so set up against an attorney's claim, for want of skill and care in the conduct of a case, other than that for which suit is brought, but in which he was employed at the same time ; the employment being the subject of the action. Harlock v. LeBaron, i C. Civ. Pro. R. 168. An agent sued for a conversion of property entrust- ed to him, in the course of his employment as such, can introduce a counter-claim for his services. Bitting V. Thaxter, 72 N. C. 541. Damages for defective performance of work may be set up in an action to recover payment for such work. Grant v. Button, 14 Johns. 377. Ives V. Van Epps, 22 Wend. 155. Or, for loss occassioned by negligence and careless- ness in the performance of labor for which plaintiff seeks to recover. Still V. Hall, 20 Wend. 51. Stoddard v. Treadwell, 26 Cal. 294. But, the negligence must be in the transaction which forms the subject of the action. Taggard v. Curtenius, 12 Wend. 155. And, fraudulent representations in relation to prop- erty sold may afford ground for a claim for damages in opposition to the plaintiffs suit for the purchase money. Benton v. Stewart, 3 Wend. 236. Bleecker v. Vroomen, 13 Johns 302, Till V, Rood, 15 Johns 230, 32 COUNTER-CLAIM But, in an action for damages lor diversion of a stream, by cutting ditches above plaintiff's lot, the defen- ant cannot set up the violation of an agreement relative to deepening the channel between the lands of the par- ties. The two causes of action do not arise from the same subject matter. Patterson v. Richards, 22 Barb. 143. So, when a horse was given in exchange for a piece of land, and having been afterwards found in defendants possession ; in a suit against him for conversion, defend- ant cannot set up fraud in the sale of the land. Walsh V. Hall, 66 N. C. 233. "Action on Contract." A cause of action arising in tort cannot be pleaded as counter-claim under this subdivision ; it can only be so offered when it arises from the transaction upon which the suit is founded. Schnaderbeck v. Worth,. 8 Abb. 37. Drake v. Cockroft, 4 E. D. Smith. 34. Donohue v. Henry, 4 E. D. Smith. 162. Kurtz v. McGuire, 5 Duer. 660. Murden v. Priment, i Hilt. 75. Berrian v. Mayor, 15 Abb. N. S. 207. Walsh V. Hall, 66 N. C. 233. Lee V. Eure, 93 N. C. 5. Britting v. Thaxter, 72 N. C. 541. Unless the defendant having a claim, in which it is permissible to waive the tort, elects to make such waiver and set up his demand upon the implied contract. Coit v. Stewart, 50 N. Y. 17. Brown v. Tuttle, 66 Barb. 169. City Bank v. Park Bank, 32 Hun. 105. UNDER THE CODE. 33 As, a principal may waive a wrongful conversion of moneys by his agent, and sue for the moneys only. Coit V. Stewart, supra. Or, where the moneys were obtained by fraud, im- position or extortion, it may be subject of counter-claim. Stewart v. Atlantic &c. Co. i Law Bui. t8. Harway v. Mayor, i Hun. 623. Money paid by mistake may be offset as an indebted- ness arising on contract. Carpenter v. Butler, 13 Week Dig. 112. And, an action to recover moneys lost at gaming falls within this subdivision. McDougall v. Walling, 48 Barb. 364. A judgment may be set up as a counter-claim, as a cause of action arising in contract. Osborn v. Etheridge, 13 Wend. 339. Taylor v. Root, 4 Keyes, 335. A claim in contract may be interposed in a suit for the foreclosure of mortgage, where a demand for a per- sonal judgment for a deficiency is made ; the action, so far as the person, against whom such demand is made, is concerned, being an action upon contract. Hunt v. Chapman, 51 N. Y. 555. Allen V. Maddox, 40 Iowa, 124. But, in an action on contract, a defendant cannot so plead that by the fraudulent inducement of the plaintiff to pay moneys, wrongfully claimed to be due, beyond the real value of the work. Berrian v. Mayor, 15 Abb. N. S. 207. 3 34 COUNTER-CLAIM The claim to be available as a counter-claim must exist at the commencement of the action ; must be a demand which the defendant could have enforced at the institu- tion of the litigation. Carpenter v. Butterfield, 3 Johns. Cas. 145. Jefferson Bank v. Chapman, ig Johns. 322. VanValen v. Lapham, 5 Duer. 689. Tasser V. Englehart, i8 Neb. 167. And such is the rule in the absence of any statutory provision to that effect. Robinson v. Safford, 57 Me. 165. Fleury v. Butler, 32 Conn. 140. Smith v. Ewer, 22 Penn. 116. This fact must appear affirmatively in the defendant's pleading. Heidenheimer v. Wilson, 31 Barb. 636. Rice V. O'Connor, 10 Abb. 362. Venable v. Haslin, i Civ. Pro. R. 215. And no items of demand arising after the commence- ment of the action can be introduced in the counter-claim. Paige v. Carter, 64 Cal. 489. A pleading, setting up a note to a third person and endorsed to the defendant, must show that the endorse- ment was made before suit. Chambers v. Lewis, 11 Abb. 210. VanValen v. Lapham, 5 Duer. 689. And that it was payable at that time. Taylor v. Mayor, 82 N. Y. 10. So, it must contain averments that it was owned by the defendant at the beginning of the suit. Belknap v. Mclntyre, 2 Abb. 366. UNDER THE CODE. 35 Cases in reference to Agent. In an action brought by a principal for a conversion of property entrusted to an agent, acting as such, and in the course of his employment, the latter may plead a coun- ter-claim for wages. Bitting V. Thaxter, 72 N. C. 541. And in a suit to recover moneys received by him in his capacity of agent, damages for a breach of the con- tract of employment may be set up. Grierson v. Mason, 60 N. Y. 394. When goods were sold by an agent without disclos- ing his agency, and without a knowledge on the part of the buyer that he was acting as agent, the purchaser may have a counter-claim for a demand due him from the agent, in a suit by the principal. Judson v. Stilwell, 26 How. 513. Pratt V. Collins, 20 How. 126. Assault and Battery. In an action to recover damages for an assault and battery; an assault and battery by plaintiff upon defendant committed just before the time of the assault complained of cannot be set up. Barhyte v. Hughes, 33 Barb. 320. Murden v. Priment, i Hill. 75. The two torts cannot be said to arise out of the same transaction, and cannot be set off, one against the other ; even if they were committed in the same affray. Schnarderbeck v. Worth, 8 Abb. 37. Fellerman v. Dolan, 7 Abb. 395. Diddell v. Diddell, 3 Abb. 167, Barhyte v, Hughes, supra. 36 COUNTER-CLAIM A libel upon defendant the day previous to the as- sault cannot be set up. McDougall V. Maguire, 35 Cal. 274. It has, however, been held that an assault and battery committed at the same time and place of the injury set forth in the complaint, may be set up in defendants plead- ing, on the ground that it arose from the "same transac- tion." Slone V. Slone, 2 Met. (Ky.) 339. Attorney. In action against an attorney for money collected by him in his capacity as attorney, he may off-set a claim for services. Gophen v. Crawford, 53 Hnu. 278. And a counter-claim will not be permitted, between the parties to an action,' so as to defeat an attorney's claim for costs. Cleland, in re, Law Rep. 2 ch. 808, Friswell v. King, 15 Sim. 191. Gridley v. Gainson, 4 Paige, 647. Leavenson v. Lafontaine, 3 Kas. 523. So, when an attorney, employed to defend an action, agrees with his client that the costs to be awarded in the action are to belong to the attorney as his compensation, a set off will not be allowed as to those costs. Channingv. Moore, Daily Reg. Feb. 7, 1888. Ely V. Cook, 28 N. Y. 365. Roberts v. Terry, 38 N. Y, 107. Such an agreement amounts to an assignment of the judgment for costs. Ely v. Cook, supra. Mackey v. Mackey, 43 Barb. 58. UNDER THE CODE. 37 Damages for want of skill and for negligence in his employment may be used as a counter-claim in an action for services ; such damages arising from the subject mat- ter of the suit. Gleason v. Clark, g Cow, 37. Hopping V. Quin, 12 Wend. 517. Fleming v. Niagara, 12 Wend. 246. Whiteleggs v. DeWitt, 12 Daly. 319. An attorney employed in five suits brought action to recover for services performed in four of them ; it was holden that the defendant could set up damages, suffered by the unskillful conduct of the suit not included in the action for services. Harlock v. LaBaron, i Civ. Pro. R. 168. Bank. A bank may set up the amount of a discounted note against a claim for the deposit of an insolvent depositor. Dammon v. Boylston Bk. 5 Cush. 194. But cannot set up a judgment against plaintiff's assignor in insolvency, in a suit by an assignee for depos- its made by him as assignee. Lawrence v. Bk. Republic, 35 N. Y. 320. Bank may set off amount of note which was payable at its place of business, and was paid by it, against a claim against it for balance of moneys received by it as pro- ceeds of sale of collateral, deposited to secure a previous note. Griffin V. Rice, i Hilt. 184. Ownership of stock in a bank cannot be taken advan- tage of by counter-claim to a suit by bank on a note. Harper v. Calhoun, 74 How. (Miss.) 203. 38 COUNTER-CLAIM Nor, in such suit can defendant set up ownership of stock and its depreciation by the fraudulent acts of the bank. U. S. Trust Co. V. Harris, 2 Bosw. 75. In a suit by a bank, defendant offering as a counter- claim the notes of a bank, must prove affirmatively that he held them at the commencement of the action. Kelley v. Garrett, i Gilman, 649. Hedenheimer v. Wilson, 31 Barb. 636. A person sued by representatives of an insolvent bank in process of liquidation, may counter-claim any in- debtedness from the bank to him. Only the balance due is to be regarded as assets. VanAllen, in re^ 37 Barb. 225. Colt v. Brown, 155 Gray, 233. An equitable offset is not affected by the appoint- ment of a receiver. Miller v Franklin Bk. i Paige, 444. Middle Dist. Bk. in re, i Paige, 585. A claim for the amount of a deposit may be set up in counter-claim against an action on a bond and mortgage brought by the receiver of an insolvent bank. New Amsterdam Bk. v. Tortler, 4 Abb.N.C.215. In an action by a National Bank, upon allegations of usurious interest the defendant may plead a counter-claim for the full amount of the interest, under U. S. Rev. Stats. §§5197, 5198- Nat. Bank. v. Lewis, 75 N. Y. 516. As to pleading, by way of counter-claim, the penalty therefor, see ; F, & M, Nat. Bk. v. Lary 22 Hun. 372. UNDER THE CODE. 39 Broker. In an action by a broker to recover loss on purchases made for a person during minority, and repudiated by the latter on arrival at full age, the customer may plead as counter-claim the amount of margins deposited with the broker. Heath v. Mahoney, 12 Week. Dig. 414. Chattels, actions for. In an action for chattels, defendant may plead that the chattels are holden by him for the enforcement of a lien for labor performed upon them ; but this defense is simply to the extent of defeating the plaintiffs recovery, and is not ground for an affirmative judgment as upon a counter-claim. Gottler v. Babcock, 7 Abb. 392. In such case the issue is the ownership of the chattel and the right to its possession, and an mdependent claim for work, does not arise from that subject matter. DeLeyer v. Michaels, 5 Abb. 203. Bissell v. Pearce, 21 Harv. 130. But see Brown v. Buckingham, 21 Hav. 190. Conversion of personal property pledged, may be pleaded in an action upon the note it was pledged to se- cure. Cass V. Higenbothan, 15 Weekly Dig. 135. But a conversion of property not connected with the subject of the action cannot be set up. Askins v. Hearns, 3 Abb. 184. In an action for the specific recovery of a chattel, the defendant may set up a warranty of quality, its breach and the damages therefor. Wilson V, Hughes, 94 N, C. 182. 40 COUNTER-CLAIM So, in such proceeding for cattle, the defendants have a counter-claim for rescuing, taking care of and feeding them. Dunham v. Dennis, 9 Iowa, 543. And, in an action for a steam engine, defendant may coimter-claim for delays in delivery beyond the specified time, the amount of rent during that time, but not pros- pective profits. Griffin V. Colver, 19 N. Y. 489. Common Carrier. Against the suit of a common carrier for transpor- tation, injury happening to the goods while in the plain- tiffs custody, is a proper subject for counter-claim. Manning v. Watson, Cheves 60. Ogden V. Coddington, 2 E. D. Smith, 317. A loss of a portion of the goods shipped may be re- covered for, in such an action. Edwards v. Todd, i Scam. (111.) 462. And, damages for detention and delay in the ship- ment and delay of freight. Ellwell V. Skidmore, 77 N. Y, 282. And, for non-delivery of a portion of the articles en- trusted to the carrier for transportation. Byrne v. Weeks, 7 Bosw. 372. Contract. That it may be a subject of counter-claim, the con- tract sought to be set up, must present a complete cause of action in favor of the defendant. Vassear v. Livingston, 13 N. Y. 248. Cragin v. Lovell, 88 N. Y. 258. UNDER THE CODE. 41 Unless arising from the subject matter ot the com- plaint, it cannot be set up in an action of tort. Chambert v. Cagney, 41 How. 125, Murden v. Priment, i Hilt. 75. Griffin V. Moore, 52 Ind. 295. Slone V, Slone, 2 Met. (Ky.) 339. As in an action for conversion of proceeds of goods sold which sounds in tort, it cannot be set up. Scheunert v. Koehler, 23 Wis. 523. The "contract" includes a judgment whether se- curred in tort or contract. Osborn v. Ethridge, 13 Wend. 339. Taylor v. Root, 4 Keyes. 335. So, in proceedings to forclose a mortgage, a demand for a personal judgment for deficiency falls within this section. Hunt V. Chapman, 51 N. Y. 555. Allen V. Maddox, 40 Iowa, 124. And, money paid by mistake, or lost at gammg. Carpenter V. Butler, 13 Week. Dig. 112. McDougall V. Walling, 48 Barb. 364. A claim for breach of contract to ship goods in prop- er cases, ma}' be off-set agamst a suit for the goods. Wheelock v. Pac. Gas Co. 51 Cal. 223. And, in an action to recover damages for non-delivery of coal according to contract for certain amount and quality, and for damages for inferiority of coal so deliv- ered ; defendant may plead a claim for advances made for freight onplaintiff's account, and for balance due for coal shippedin excess of sum advanced to plaintiff. Leavenworth v. Packer, 52 Barb. 132. 42 COUNTER-CLAIM - A balance due on partnership account after dissolution may be so pleaded in an action by one partner. Waddell v. Darling, 51 N. Y. 327. In an action to set aside a conveyance and contract to reconvey, on the ground that they really constituted a mortgage to secure a usurious loan ; and demanding an accounting for rents and profits ; a claim by defendant for rent of a portion of the premises of the plamtiff may be set up. Barnes v. Gilmore, 6 Civ. Pro. R. 286. In action for use and occupation, defendant may counter-claim for damages arising from breach of con- tract to keep in repair. Westlake v. Degraw, 25 Wend. 669. Ethridge v. Osborn, 12 Wend. 529. Dorwin v. Potter, 5 Denio, 306. Divorce. Where an action is brought by either husband or wife, as prescribed in either of the articles relating to absolute divorce or to separation, a cause of action, against the plaintiff, and in favor of the defendant, arising under either of said articles, may be interposed in con- nection w^ith a denial of the material allegation of the complaint, as a counter-claim. Code Civ. Pro. § 17704. Adultery affords good ground for a counter-claim and for affirmative relief. Anonymous, 17 Abb. 48. And the court may grant a divorce to a non-resident defendant, who prevails upon his counter-claim. Fullman v. Fullman, 6 Week. Dig. 22. UNDER THE CODE. 43 The allegations must be substantially like those of a complaint, and must aver all the facts that would be necessary for a plaintiff to aver. Morrell v. Morrell, 3 Barb. 236. And, such a counter-claim requires a reply. Leslie v. Leslie, 2 Abb. N. S. 311. It may set up the invalidity of the marriage and pray for a decree declaring it invalid. Finn v. Finn, 62 How. 83. In an action for an absolute divorce, the counter- claim must set up allegations that would support a com- plaint for such a divorce. Diddell v. Diddell, 3 Abb. 167. Griffin v. Griffin, 23 How. 183. And a counter-claim, in a proceeding for a limited divorce, must demand the same decree. McNamara v. McNamara, 8 Abb. 18. So, adultery cannot be set up in an action for limited divorce. Henfy v. Henry, 27 How. 5. Nor, can cruelty be pleaded against allegations of adultery, and made the basis for a decree for a separation. Diddell v. Diddell, 3 Abb. 167. When a counter-claim has been pleaded, setting up adultery on the part of the plaintiff, the defendant has a right to insist upon a trial of that allegation. Campbell v. Campbell, 12 Hun. 637. Kugel V. Kugel, Daily Reg. March 7, 1888. And the fact that plaintiff is too poor to prosecute, will not authorize the discontinuance of the action, and the defendant may proceed to trial. Kugel V. Kugel, supra. 44 COUNTER-CLAIM Do\*'er. The widow's claim for dower is not subject to a set off for damages, nor for tiic rents and profits received by her since her husband's decease, unless she claims dama- ges, in which case it falls within the rule permitting counter-claims. Bogardus v. Parker, 7 How. 303. Fraud. Fraud in the inception of a contract may be set up in an action for the enforcement of such contract. Bruce v. Burr, 67 N. Y. 237. Brown v. Tuttfe, 66 Barb. 169. And for money over-paid for goods which were de- ficient in quality, the fraud of the plaintiff in inducing the purchaser may be pleaded. Betz, V. Peter, 3 Week. Dig. 517. In an action to cancel a policy of insurance, upon the ground of fraud, defendant may set up a claim for loss under it. Revere Ins. Co. v. Chamberlin, 56 Iowa, 508. Against a claim sued by a corporation, defendant can not set up that he had been a member of a joint stock as- sociation, and that other members, in violation of their by-laws, had fraudulently sold out to plaintiff corporation and rendered his shares worthless. N. Y. Ice Co. v. Parker, 8 Bosw. 688. Damages for fraudulent representations in sale of either personal or real estate may be recovered by de- UNDER THE CODE. 45 fendant on his counter-claim therefor. Benton v. Stewart, 3 Wend. 236. Spaulding v. Vandercook, 2 Wend. 431. Allaire v. Whitney, i Hill, 414. Bleecker v. Vrooman, 13 Johns. 302. Till V. Rood, 15 Johns, 230. Lewis V. Cosgrove, 2 Taunt. 2. VanEpps v. Harrison, 5 Hilt, 63. Goods sold. Any damage arising from a breach of warranty, or deceit or fraud, as to the quality or quantity of goods sold, may be used as a counter-claim. Brooklyn v. Earle, i Law Bui. 46. And the same is true of a note given for goods sold. Isham V. Davidson, 52 N. Y. 237. Walsh V. Hall, 66 N. C. 233. And, in an action to compel a specific delivery of goods, a counter-claim mav demand the price and value of those goods. Thompson v. KeSsel, 30 N. Y. 383. Or, in suit for the price of goods, defendant may seek damages for non-delivery according to contract. Chambers v. Frazier. 29 Ohio St. 362. In an action for conversion of goods sold, which sounds in tort, it does not admit of a counter-claim m con- tract. Scheumert v. Koehler, 23 Wis. 523. Judgment. A judgment is a "contract" within the meaning of this section and is a proper subject ol counter-claim in an action upon a contract. Taylor v. Root, 4 Keyes, 335. Osborq v. Ethridge, 13 Wend. 339. 46 COUNTER-CLAIM, The statuory prohibition against bringing an action upon a justice's judgnieuL, within five years after rendi- tion, does not permit its being pleaded as a defense or a counter-claim. Clark V. Story, 29 Barb. 295. Equity enforced the set off of a judgment against two, in a claim of one of the judgment debtors in Spurr V. Snyder, 35 Conn. 172. In an action to compel the satisfaction of record of certain judgments, a counter-claim cannot be set up to the effect that a certain deed was given as a settlement, and demanding cancellation of the deed. Dietrich v. Koch, 35 Wis. 618. Landlord and Tenant. In an action by the landlord for rent, the tenant may set up by way of counter-claim a partial eviction. Blair v. Claxton, 18 N. Y. 529. Goebel v. Hough, 26 Minn. 252. LaFarge v. Halsey, 4 Abb. 297. But, damages accruing from improper construction or want of repair and leakage in a waste pipe, cannot be set up. Edgerton v. Page, 20 N. Y. 281. Nor, that an upper portion of the building was leased for a business that so injured the property leased by de- fendant, as to sometimes unfit it for his use. Boreel v. Lawton, 90 N. Y. 293. But, the tenant may set up as a counter-claim a breach of a contract for quiet enjoyment. Mayor V. Mabie, 13 N. Y. 151. Walker V. Shoetnaker, 4 Hun. 579. UNDER THE CODE. 47 And, any damages resulting to him from a breach of the landlord's agreement to keep in repair. Westlake v. Degraw, 25 Wend. 669. Ethridge v. Osborn, 12 Wend. 529. Dorwin v. Potter, 5 Denio, 306. And, this may be so offset; although the contract for i-ent and for repairs were distinct and separate. Green v. Bell, 3 Abb. 291. When an assignee of the lease, sues the tenant for rent, the latter cannot plead a counter-claim against the assignor, which arose prior to the assignment and prior to the commencement of the tenancy. Peckham v. Leary, 6 Duer, 494. Injuries to the tenant's possession, arising from a change of the grade of the street opposite the premises, cannot be made the subject of counter-claim, in the ab- sence of express covenant. Gallup V. Albany Ry. Co. 65 N. Y. i. In summary proceedings the tenant cannot introduce a counter-claim arising on contract. Barker v. Walbridge, 14 Minn. 469. Kelley v. Teague, 63 Cal. 68. Nor, for making improvements, on the property, as by erecting a new building. D'Armond v. Pullen, 13 La. An. 137. In an action by the tenant to recover costs, awarded him in summary proceedings to dispossess, the landlord cannot set off rent. Osborn v, Ethridge, 13 Wend. T)-i,(). 48 COUNTER-CLAIM, Mechanic's L,ien. In a proceeding to enforce a mechanic's lien on a married woman's property, in which the husband is joined lormally ; a claim due from the latter cannot be set up. Carpenter v. Leonard, 5 Minn. 155. Carpenter v. Wilversheid, 5 Minn. 170. Nor, in such proceedings, can the fact that the prop- erty, upon which the lien is claimed, is exempt under the homestead laws, be used as a counter-claim. Englebrecht v. Rickert, 14 Minn. 140. A claim for rent subsequently accruing, was not permitted to be set off in McQuaide v. Stewart, 48 Pa. S. V. 198. Vlortgfag'e. When a claim is made, in foreclosure proceedings, for a personal judgment for a deficiency, the person against whom such claim is made may set up a counter- claim in contract. Hunt V. Chapman, 51 N. Y. 555. Bathgate v. Haskins, 63 N. Y. 261. Allen V. Maddox, 40 Iowa, 124. But not otherwise. Agate V. King, 17 Abb. 159. Any indebtedness between the parties U> the instru- ment may be set off. Richmond v. Lattin, 64 Cal. 273. A person against whom no personal claim is made, cannc^t plead as a counter-claim, that he had become the assignee of the plaintiffs' covenants against incumbrances and of warranty, and had been evicted by a tax title. Nat, F. Ins. Co. v, McKay, 21 N. Y. 191. UNDER THE CODE. 49 In an action upon the mortgage and note, the defend- ant may counter-claim damages arising trom the fraudu- lent representations of plaintiff, in the purchase ot the premises, for the purchase money of which the mortgage was given. Allen V. Shackerton, 15 Ohio St. 145. Peirce v. Tiersch, 40 Ohio St. 168. But, fraud committed after the giving of the mort- gage cannot be. Reed v. Lawson, 15 Barb. 9. In foreclosure proceedings defendant may set up that the mortgage was given on one-half of the premises for a portion of the money, and an absolute deed, to be regarded as a mortgage, for the other half ; and may de- mand a cancellation of the deed. Bernheimer v. Willis, 11 Hun. 16. An answer alleging the invalidity of the mortgage and setting up title under a subsequent mortgage, does not constitute a counter-claim ; but a defense. Caryl v. Williams, 7 Lans. 416. So, a pleading showing the bond and mortgage to be void for usury, is a defense and not a counter-claim. Barthet v. Ellas, 2 Abb. N. C. 264. In an action to foreclose and to charge a third per- son as guarantor for the deficiency, defendant may set up a breach of a parol agreement to keep the premises in- sured. Van Brunt v. Day, 81 N. Y. 251. In an action on a mortgage given to secure amount of purchase of a business and the good will, breach ot the agreement in relation to the good will may be coun- ter-claim, Burckhardt v, Burckhardt, 36 Ohio St, 261. 50 COUNTER-CLAIM Negligence. In actions to recover for services, any loss by reason of the plaintiff's negligent performance of his duties affords a basis for counter-claim. Still V. Hall, 20 Wend, 21. Stoddard v. Treadwell, 26 Cal. 294. The law implying an obligation on plaintiffs part to exercise ordinary care in the performance of his duties. Ibid. And, loss resulting from an improper performance of his duties by a warehouse-man, will render him liable to this remedy. Hachett v. Gibson, 13 Ala. N. S. 587. But, negligence in some collateral transaction will not ; it must occur in the same transaction. Taggard v. Curtenius, 15 Wend. 155. Damages for negligence in protesting note are per- raissable under a set off. Bidwell V. Madison, 10 Minn. 13. A landlord cannot be rendered liable in this form of remedy to damages arising for negligently making re- pairs upon premises for which he sues to recover rent. Cram v. Dresser, 2 Sandf. 120. A carrier, by whose negligence and delay, damages have occurred to freight, may be charged therewith in an action brought by him for the carriage. Elwell V. Skiddy, 77 N. Y. 282. The owner of a steamboat, in a suit by the city for whariage dues, was allowed to counter-claim for damages arising from negligence in permitting obstructions m the river, Starrett v, Houston, 14 Tex. 153, UNDER THE CODE. 51 Note. Fraudulent representations as to title of property for which a note was given, may be set up. Hinkle v. Margerum, 50 Ind. 240. And damages for breach of the agreement may be pleaded in an action upon a note given upon an agree- ment to sell lands. Hunt V. Gilmore, 59 Pa. St. 450. And for overcharges in the sale of goods for which it was given. Briggs v. Freedman, 9 Civ. Pro. R. 73. And, fraudulent representations as to value of a farm which formed its consideration. Isham V. Davidson, 52 N. Y. 240. So, defective quality in goods purchased may be the basis of a counter-claim. King v. Quidrick Co. 14 R. I. 131. Hurst v. Everett, 91 N. C. 399. And, in a suit on the note, a counter-claim for dama- ges may be set up for conversion of the property pledged to secure it. Cass V. Higenbotham, 100 N. Y. 248. A counter claim to a note may attack its validity; and demand possession of it. Sigler V. Hiddy, 56 Iowa, 508. May set up that the note was secured by a convey- ance, absolute in form, but a mortgage in fact, and that plaintiff still holds the property and refuses to reconvey. Vail V, Jones, 31 Ind. 467, 32 COUNTER-CLAIM A note may still be set up, although a judgment has been rendered on it between other parties. Kelsey v. Bradbury, 21 Barb. 531. Lowell V. Lane, 33 Barb. 292. In an action in the nature of trover, for notes endors- ed by plaintiff, defendant may plead title to them and de- mand judgment against plaintiff as an endorser. Xenia Bank v. Lee, 7 Abb. 372. A counter-claim upon the note ot a third person must show an endorsement before suit. Chambers v. Lewis, 11 Abb. 210. VanValen v. Lapham, 5 Duer. 689. And that it was owned by the defendant at the time of the commencement of the action. Belknap v. Mclntire, 2 Abb. 366. And that it was then due and payable. Taylor v. Mayor, 82 N. Y. 10. Partners. A claim for moneys advanced on joint and partner- ship transaction, concerning which an action for an ac- counting is pending, and in which no balance has been found, cannot be set off. Channing v. Moore, Daily Reg. Feb. 7, 1888. A partner cannot set off a claim against his co-part- ner until a final settlement and balance struck. Ives V. Miller, 19 Barb. 196. In action against two or more partners, a claim against one cannot be set up. Peabody v. Bloomer, 5 Duer. 678, Peabody v, Beach, 6 Duer. 53. UNDER THE CODE. 53 And, in a suit by one member of a firm, a demand against all the members, cannot be pleaded. Mynderse v. Snook, i Lans. 488. Realty. In ejectment, the land in controversy is the " subject of the action," and any facts showing that the equitable title is to the defendant may be pleaded. Cornelius v. Kessel, 56 Wis. 237. Farmer v. Daniel, 82 N. C. 152. Smith V. Lookobill, 76 N. C. 465. A claim for waste committed upon real estate out of the jurisdiction cannot be set up ; the claim can only be available in the. forum rei sitae. Cragin v. Lovell, 88 N. Y. 258. In an action for possession, the defendant may set up, by way of counter-claim, an equitable title, and de- mand a judgment for a conveyance. Crary v. Goodman, 12 N. Y. 266. Cavalli v. Allen, 57 N. Y. 508. And a specific performance of an agreement to convey may be asked in an action for the purchase money. Moser' v. Cochrane, 21 Week. Dig. 545. A payment of incumbrances on lands of debtor, by a purchaser at a judicial sale, does not constitute a coun- ter-claim against a petition of the widow of the debtor for partition. Blakely v. Boruff, 71 Ind. 93. A contract for the conveyance of lands, which is void by the statute of frauds, cannot be the basis of a counter- claim. Ryan v. Dunphy, 4 Mont, 342. 54 COUNTER-CLAIM In action for the purchase money a breach of the covenant of seizure may be pleaded. Scantlin v. Allison, 12 Kas. 85. Services. In an action by a physician or an attorney, for skill and services ; damages for want of skill may be pleaded. Gleason v. Clark, 9 Cow. 57. Hopping V. Quin, 12 Wend. 517. Fleming V. Niagara, 12 Wend. 246. So, in suit for labor in erection of a house, defend- ant may recover for defective work. Foster v. Butler. 7 East. 479. Grant v. Button, 14 Johns. 377. Ives v. VanEpps, 22 Wend. 155. Gibson v. Carlin, 13 Lea (Tenn.) 440. In action by a workman, defendant ma)' set up claim for material converted by him. Wadley v. Davis, 63 Barb. 500. Or, for any misappropriation of propert}' received by plaintiff in the course of his employment. Lerche v. Brascher, 8 Civ. Pro. R. 115. And, it is in accordance with the provisions of the code, that in a suit for services, any clami may be set up against it, which occurred to defendant by the negligence or misconduct of the plaintiff in the performance of those services. Ogden V. Coddington, 2 E. D. Smith, 317. Ives V. VanEpps, 22 Wend. 155. And damages for leaving the defendant's services be- fore the expiration of the contract time, may be pleaded. Hunt V, Otis Co. 4 Met. 464. UNDER THE CODE. 55 In a suit against a physician for mal-practice, a judgment rendered in a previous action in favor of de- fendant, for the professional services and skill is a bar to a counter-claim setting up want of skill. Bellinger v. Craigue, 31 Barb. 534. Surety. A surety cannot set up a claim in favor of his prin- cipal. LaFarge V. Halsey, i Bosw. 171. Lasher v. Williamson, 55 N. Y. 619. Henry v. Daley, 17 Hun. 210. People V. Bradrath, 3 Abb. N. S. 224. Springer v. Dwyer, 50 N. Y. 19. Mills V. Pierson, 2 Hilt. 16. Gaff v. Kahn, 18 111. App. 485. Surety on a contract of warranty cannot set up as a counter-claim a breach of warranty by a vendor ; nor that the contract was procured by fraud ; that defense is per- sonal to the principal. Henry v. Daley, 17 Hun. 210. If a co-surety has received money from the principal as security, he may be forced to account by the other sur- ety ; but the co-surety cannot set up a simple debt to the principal. Davis v. Toulmin, 77 N. Y. 280. Taxes. Taxes, as a general rule, are not liable to be defeated in their collection by a counter-claim. Wilson V. Lewiston, i Watts & S. 428. Concord v. Pillsbury, 33 N. H. 310. So, a collector cannot set up a debt due from the town against a claim for the taxes. Concord v. Pillsbury, Supra. Waterbury v. Lawlor, 31 Conn. 171, 56 COUNTER-CLAIM, This is the rule that prevails : the collection of the tax not falling within any provisions of this statute relating to counter-claim or set off. Gatling V. Commissionfers, 92 N. C. 536. A claim for money advanced to an overseer of the poor cannot be counter-claimed against a penalty for vio- lation of the excise law. Denniston v. Trimmer, 27 Hun. 393. Damages for injuries for neglect in making improve- ments on a street cannot be set up against a claim for taxes for such improvements. Burlington v. Palmer, 67 Iowa, 681. Tort. No counter-claim is permissable m actions of tort, unless it arises from the cause of action set forth in the complaint, or connected with the subject matter of the action. Schnaderbeck v. Worth, 8 Abb. 37. Donohue v. Henry, 4 E. D. Smith, 162. Drake v. Cockroft, 4 E. D. Smith, 34. Kurtz v. McGuire, 5 Duer. 660. Murden v. Priment, i Hilt. 75. Walsh V. Hall, 66 N. C. 233. Bittany v. Thaxter, 72 N. C. 541. Lee V. Eure, 93 N. C. 5. McArthur v. Green Bay &c., 34 Wis. 139. An independent tort cannot be made available by counter-claim. Cram v. Dresser, 2 Sandf. 120. Murden v. Priment, i Hilt. 75. Bell v. Lesbini, 66 How. 365. Berry v. Carter, 19 Kas. 140, UNDER THE CODE. 57 But any claim arising from the transaction declared upon ; whether it be contract or tort, will permit the counter-claim. Lasher v. Williamson, 55 N. Y. 619. Hoffa V. Hoffman, 33 Ind. 172. Bitting V. Thaxton, 72 N. C. 541. Green v. Parsons, 27 Week. Dig. 544. Trespasses cannot be made to compensate each other, and the fact that one trespass is consequent upon another does not so connect it with the subject of the action, as to permit it to be blended in the same proceeding. Shelly V. Vandersdoll, 23 Ind. 543. Hart V. Davis, 21 Tex. 411. Barhyte v. Hughes, ^^ Barb. 320. So, slander or libel cannot be made a counter-claim, in an action for an assault consequent upon it. FuIIerman v. Dolan, 7 Abb. 395. Barhyte v, Hughes, supra. And, in an action for damages for permitting water to run through the floor and injuring plaintiff, who was a tenant of a lower story ; the defendant cannot set up in- juries resulting from smoke from the plaintiff's forge. Murden v. Priment, i Hilt. 75. Or, in action tor conversion of a cow, damages com- mitted by her to crops, could not be pleaded. Shelly V. Vandarsdoll, 23 Ind. 543. Where the tort can be waived and an action main- tained upon the implied contract, the claim may be so pleaded in an action upon contract. Challis V. Wylie, 35 Kas. 506. Wood V. Mayor, 73 N. Y. 556. Brown v. Tuttle, 66 Barb. 169, Brady v. Brennan, 25 Minn. 210. 58 COUNTER-CLAIM Or a principal may waive the wrongful conversion of moneys received by one employed as his agent, and in- terpose his claim against a suit for the employment. Colt V. Stewart, 50 N. Y. 17. Or, the wrong may be waived and the amount set up, where money has been obtained by extortion or fraud. Stuart V. Atlantic Co. i Law. Bull. 18. Harway v. Mayor, i Hun. 623. So, may a trespass, in breaking and entering defend- ant's close and feeding cattle therein ; and a claim for the pasturage be set up. Norden v. Jones, 33 Wis. 600. ^Tarranty. In an action for the recovery of the price of goods sold, the defendant may plead a counter-claim upon a warranty thereof. Rait V. McAllister, 8 Wend. 109. Jones V. Scriven, 8 Johns. 358. Cook V. Moseley, 13 Wend. 277. Mills v. Rosenbaum, 103 Ind. 152. Any breach of warranty, as to quality or quantit}- may be so pleaded, and damages demanded therefor Lemon v. Trull, 13 How. 248. Bounce v. Dow, 57 N. Y. 16. Earl V. Bull, 15 Cal. 421. Day V. Pool, 52 N. Y. 416. Norton v, Dreyfuss, 51 Supr. 491, UNDER THE CODE. 59 SKCTION 502. I,IMITATIOI« OF COriVTER-CLAIM. But the counter-claim specified in subdivision second of the last section, is subject to the following rules : 1. If the action is founded upon a contract, which has been assigned by the party thereto, other than a negoti- able promissory note or bill of exchange, a demand, exist- ing against the party thereto, or an assignee of the con- tract, at the time of the assignment thereof, and belong- ing to the defendant, in good faith, before notice of the assignment, must be allowed as a counter-claim, to the amount of the plaintiff's demand, if it might have been so allowed against the party, or the assignee, while the con- tract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it, after it became due, must be allowed as a counter-claim, to the amount of the plaintiff's demand, if it might have been so allowed against ther assignor, while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the ac- tion is in the name of a plaintiff, who has no actual inter- est in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counter- claim ; but so much of a demand existing against the per- son whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counter-claim, if it might have been so 6o COUNTER-CLAIM allowed in an action brought by the person benefically interested. This section is substantially the same as R. S. 354 § 18, subdivisions 8, 9 and 10, which are respectively i, 2 and 3 of this section. The word " counter-claim," was substituted for " set off," wherever it appeared in the statutes. These sections existed, in practically the form in which they now are, before the adoption of the code ; and no new rules relating- to what was distinctively known as set-off, have been introduced by the code. Martin v. Kunzmuller, 37 N. Y. 396. What Claims may be Assigfned. Where a claim or demand can be transferred, the transfer passes an interest which the transferee may en- force by an action or special proceeding, or interpose as a counter-claim in his own name, as the transferor might have done ; subject to any defense or counter-claim, ex- isting against the transferor before notice of the transfer, or against the transferee. Code of Civ. Pro. § 1909. The foregoing does not apply so as to vary the rights and liabilities of a party to a negotiable instrument which is transferred. Ibid. Any claim or demand can be transferred except in one of the following cases : 1. Where it is to recover damages for a personal injury or for a breach of promise to marry. 2. Where it is founded upon a grant, which is made void by a statute of the state ; or upon a claim to or inter- est in real property, a grant of which, by the transferror, would be void by such a statute. UNDER THE CODE. 6i 3. Where a transfer thereof is expressly forbidden by a statute of the state, or of the United States, or would contravene public policy. Code of Civ. Pro. § igio. A cause of action to cancel or otherwise affect an instrument executed, or act done, as security for a usu- rious loan or forbearance, may be transferred. Code of Civ. Pro. § 1911. K judgment for a sum of money, or directing the pay- ment of a sum of money, may be transferred. But if vacated or reversed, the transfer does not transfer the cause of action, unless the latter was trans- ferable before judgment was recovered. Code of Civ. Pro. § 1912. The right to the recovery of damages which resulted from the tortious conversion of personal property, may be assigned, and the assignee may pursue his remedy in his own name. McKee v. Judd, 12 N. Y. 622. Richtmeyer v. Remsen, 38 N. Y. 206. Robinson v. Weeks, 6 How. 161. Genet v. Howland, 30 How. 360. Gould v. Gould, 36 Barb. 270. As, an aclion against a common carrier for injuries to, and loss of goods entrusted to it for carriage. Foy v. Troy & Bost. R. R. 24 Barb. 382. The conversion of personal property left as security, for although the tort itself is not assignable, yet after the conversion the interest of the owner in the chattel may be transferred so as to vest a right of action in the pur- chaser. Hall V. Robinson, 2 N. Y. 293, 62 COUNTER-CLAIM, > Or, a common carrier to whom a right of action has accrued against a person for injuries to freight, while in its possession, may assign that right, so that the trans- feree may maintain a suit in his own name. Merrick v. Brainard, 38 Barb. 574. A cause of action arising from damages caused by negligence of a railroad, in killing plaintiff's cattle. Butler V. N. Y. & L E. Ry. 22 Barb. no. And, for negligently setting fire to, and burning crops upon a farm. Fried v. N. Y. Cent. Ry. How. 285. Such an action would survive to the representatives of the owner, if deceased, and can therefore be assigned. Smith v. N. Y. & N. H. Ry. 28 Barb. 605. Merrill v. Grinnell, 30 N. Y. 594. An assignment of goods in the charge and possession of a carrier, which conveys all the owners " interest in the goods," carries the right of recovery agamst the person in whose charge they are. Waldron v. Willard, 17 N. Y. 466. But a right of action for injuries sustained by a pas- senger on a railroad is not a transferable right. No such right existed at common law, and the code does not give it. Hodgman v. Western Ry. 7 How. 492. Purple v. Hudson River Ry. 4 Duer. 74. And it was held that an injury by a carrier arising purely ex delicto, could not be assigned. Thurman v. Wells, 18 Barb. 500. See Vogel v. Babcock, i Abb. 176. Eadie V. Slimrnon, 26 N. Y. 9, UNDER THE CODE. 62, Expectant estates, whether vested or contingent, and even if contingent upon an event which may not occur, ma}' be assigned. Nichol V. N. Y. & Erie Ry. 12 N. Y. 121. Moore v. Littel, 41 N. Y. 66. Stover v. Egeleshimer, 4 App. Dec. 309. Field v. Mayor, 6 N. Y. 179. A legacy payable at a future time, may be assigned after the death of the testator. Parmelee v. Cameron, 41 N. Y. 392. Or, an agreement lor the payment of an annuity dur- ing the life of a survivor of two persons. Prindle v. Caruthers, 15 N. Y. 425. A guaranty may be assigned and will give the assign- or the same rights that the original holder had. Evansville Bank v Kauffman, 24 Hun 612. Insurance policy upon which there has been a loss ; although the policy contains a clause forbidding an as- signment without consent of the company, the right of action to recover for the loss may be transferred. Brichta v. N. Y. Lafayette Co. 2 Hall, 372. Goit v. Nat. Protect. Co. 25 Barb. 189. Courtney v. N. Y. City Ins. Co. 28 Barb. 116. Carroll v. Charter Oak Co. 40 Barb. 292. Fowler v. N. Y. Indemn. Co. 26 N. Y. 422. The policy itself is so assignable unless it contains the provision forbidding a transfer. St. John V. Am. Mut. Life Co. 13 N. Y. 31. Olmsted v. Keyes, 85 N. Y. 593. A life policy is assignable, and carries to the assignee the right to recover the full sum insured, without proof of an insurable interest in the life of the assured. St. Joha V, Arn, Mut, Life Co, supra, &A COUNTER-CLAIM But, a policy on her husband's life, taken by a married woman cannot be assigned to another for his benefit as against the wife and children. Ibid. A right of dower, before the death of the husband, is not assignable as such. Moore v. Mayor, 8 N. Y. no. Marvin v. Smith, 46 N. Y. 571. Elmendorf V. Lockwood, 57 N. Y. 322. Winans v. Peebles, 32 N. Y. 423. Damages for seduction and consequent loss of servi- ces, cannot be transferred. People V. Tioga, 19 Wend. 73. McKee v. Judd, 12 N. Y. 622. A legacy to a benevolent society in trust for the pur- chase of books cannot pass by assignment. Andrew v. Bible Soc. 4 Sand. 156. But a fixed and absolute legacy, not coupled with a trust, may be. Parmelee v. Cameron, 41 N. Y. 392. A right of action for a mere personal tort is not sub- ject of assignment. Brooks V. Hanford, 15 Abb. 342. The lien of a master on the freight and earnings of the voyage for advances necessarily incurred may be assigned. Sorley v. Brewster, i Daly 79. Everett v Coffin, 6 Wend. 603. And the equitable lien of a vendor. Smith v. Smith, i Sheld. 238. Bardwell v, Collie, 45 N. Y. 494. UNDER THE CODE. 65 The right to acquire a mechanic's^ lien being a per- sonal right does not pass to an assignee ; but after the lien has been once acquired the real owner may prosecute it to judgment. Rollin V. Cross, 45 N. Y. 766. Roberts v. Fowler, 3 E. D. Smith, 632. First Nat. v. Day, 32 Iowa, 680. Brown v. Harper, 4 Oregon, 89. Caldwell v. Lawrence, 10 Wis. 331. Tewksbury v. Brown, 48 Wis. 581. A sheriff's liability for neglect in the enforcement of an execution against the person of a judgment debtor, for such neglect, whereby the creditor loses his debt, is a wrong to the property of the creditor, which is assign- able. Dininny v. Fay, 38 Barb. 18. Or, to seasonably return an execution, and for false return. Jackson v. Dagett, 24 Hun. 204. And a bank's liability for negligence in protesting a note. Ayrault v. Pacific Bk. 6 Robt. 337. So, for negligence, and consequent damages result- ing therefrom, in permitting a sunken canal boat to im- pede the navigation of the canal. Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648. Fees oi a public officer, whether earned or not ; the^ assignment m the latter event being valid in equity. People V. Dayton, 50 How. 143. Piatt V. Stout, 14 Abb. 178. Of a sheriff for services in making service of process, against the attorney. Birkbeck V, Stafford, 23 How, 236. 5 66 COUNTER-CLAIM There can not be an assignment of rights that would not pass to personal representatives ; so a right of action for damages for deceit is not transferable. Zabriskie v. Smith, 13 N. Y. 322. Hyslop V. Randall, 4 Duer, 660. And when the wrong is a pure fraud or deceit prac- ticed upon a person, without relation to his property, it cannot so pass. Lamphere v. Hall, 26 How. 509. As, a fraudulent mis-recital of the return day of a summons, whereby the defendant was caused to make default in appearance and judgment was entered against him. Lamphere v. Hall, Supra. Or, for a false return of service of a summons, by which a judgment was wrongfully obtained. Ford V. Chandler, 26 How. 513. Action on Assigfned Contract. The principle upon which it is based being, that an assignee can acquire no rights superior to those of his assignor, and takes his title subject to all the equities that existed against the latter at the time of the assignment. Martin v. Kunzmuller, 10 Bosw. 26. Myers v. Davis, 22 N. Y. 489. Bush V. Lathrop, 22 N. Y. 535. Harway v. Mayor, 4 T. «fc C. 167. Utica Ins. Co. v. Power, 3 Paige, 365. Ainslie v. Boynton, 2 Barb. 258. A counter-claim to be available under this section must be founded on an existing demand in presenti and not one that may be claimed in futuro. Kingston Bk. v. Gay, 19 Barb. 459. Waldron v. Baker, 4 E. D. Smith, 440. UNDER THE CODE. 6^ And it must be shown to have been in the posession and ownership of deiendant before suit brought. Mayo V. Davidge, 44 Hun. 342. Where a defendant, who seelis to set up a counter- claim, was notified that the person with whom he dealt was acting as an agent for the real owner, before the com- pletion of the contract, the counter-claim is not available to him. Moore v. Clementson, 2 Camp. N. P. 22. Hogan V. Shorb, 24 Wend. 457. Or, before delivery of the goods, and before the in- debtedness actually arose. Rabone v. Williams, 7 Tr. R. 360. Such a notice before the acceptance of the goods contracted for, works the same result. McLachlin v. Brett, 105 N. Y. 291. The right of set off against an assignee, being purely statutory, the allegations of the counter-claim must brmg it strictly within the statute. Willover v. Olean, 10 Civ. Pro. R. 80. And, must show that it existed and belonged to the defendant at the commencement of the action. Moody V. Steele, 11 Civ. Pro. R. 205. Mayo V. Davidge, 44 Hun. 342. , A,4e«iaBd may be defeated by an assignment^Defore ^^ ZiJ^U^ matures ; even when the opposite party is insolvent. Fort V. McCully, 59 Barb. 87. Myers v. Davis, 22 N. Y. 489. Martin v. KunzmuUer, 10 Bosw. 26, Murray Y; Deyq, to Hun. 3. 68 COUNTER-CLAIM And this is true of a demand which is held as col- lateral security. Nelson v. Edwards, 40 Barb. 279. So, it must be payable at the time of the assignment, to enable a defendant to interpose it as a set-off. Westlake v. Bostwick, 35 Supr. 256. Beckwith v. Union Bk. 9 N. Y. 211. Myers v. Davis, 22 N. Y. 489. Roberts v. Carter, 38 N. Y. 107. Martin v. Kunzmuller, 37 N. Y. 396. Any claim that is capable of being transmitted to personal representatives may be assigned ; the power to assign and to transmit to personal representatives being convertible propositions. Byxbie v. Wood, 24 N. Y; 607. Zabriskie v. Smith, 3 Kern. 333. Therefore, a cause of action, founded upon a claim alleged to have been obtained by fraudulent inducements, is not, necessarily, such an action of tort as not to be as- signable. Byxbie v. Wood, 24 N. Y. 607. And this, even though the fraud were something more than a mere inducement to the advance of moneys, still the cause of action would be assignable, as it would pass to a personal representative. Byxbie v. Wood, Supra. As, the obtaining of moneys by fraudulent pretenses and representations, will afford a basis for a counter-claim which may be pleaded against an assignor. Harway v. Mayor, 4 T. & C. 167. UNDER THE CODE. 69 The phrase " waiving the tort," means no more than that ; in treating the matter as a contract, the creditor waives his right to pursue it as a tort, with the peculiar remedies and consequences belonging to an action of that character. Harway v. Mayor, Supra. And the assignee's rights are subject to all defenses that were open to the defendant against the assignor. Ibid. To authorize a counter-claim against an assignee, it must appear that the demand existed against the assignor before, or at, the time of the assignment. Martina v. Willis, 2 E. D. Smith, 524. Duncan v. Stanton, 30 Barb. 533. Willover v Bank of Orlean, 10 Civ. Pro. R. 80. It is essential that the demand against the assignor should be owned by the defendant at the time he receiv- ed notice of the assignment. Mason v. Knowlson, i Hill. 281. Soloman v. Holt, 3 E. D. Smith, 139. McCabe v. Gray, 20 Cal. 509. It must appear to have been both due and payable before notice of the assignment was received. Wells V. Stewart, 3 Barb. 40. This is the general rule in jurisdictions, which have no statutory provisions in relation thereto ; that a claim acquired against a creditor before notice of the assign- ment of the demand against him, may be set off, in an ac- tion by the assignee ; but not when acquired after notice. Brashear v. West, 7 Peters, 608. George v. Tate, to2 U. S. 564. Howe v. Sheppard, 2 Sumn. 409. Stewart v. Anderson, 6 Cranch, 203, Wood v. Carr, 2 Story, 366, ?o COUiSJTER-CLAlM The right to set off being presumed down to the time of the notice. Westlake v. Bostwick, 35 Supr. 256. And the pleading which sets up the counter-claim, should allege the ownership in the defendant before no- tice of the assignment. Venable v. Harlin, i Civ. Pro. R. 215. Moody V. Steele, 11 Civ. Pro. R. 205. When the claim sought to be set up was a judgment founded upon an action of tort, and the judgment was recovered after the assignment, although the original cause of action existed before, it cannot be pleaded as a counter-claim ; it must have been an existing claim of such a nature as to have been capable of set off at the time of the assignment. Roberts v. Carter, 38 N. Y. 107. So, a note which matured after the making of the assignment, cannot be set up. Martin v. Kunzmuller, 37 N. Y. 396. Therefore, the assignee of a non-negotiable chose in action, who has given notice of the assignment cannot be prejudiced by subsequent dealings between the parties. Meyers v. Davis, 22 N. Y. 489. A bank, which held a protested note and had tem- porarily parted with the instrument, still retained the right of set off, if it regained possession of the note before notice of the assignment, and could interpose it against an assignee of the debtor's deposit. Robinson v, Howes, 20 N, Y. 84, UNDER THE CODE. 71 Until a demand becomes due, it may be defeated by an assignment of the claim ol the opposite party, even though the latter be insolvent and his demand were not payable when assigned. Myers v. Davis, 22 N. Y. 489. Breen v. Seward, 11 Gray, 118. Fort v. McCully, 59 Barb. 87. It is not necessary to the validity of an assignment, as to third persons, that it should have been actually paid for. Everit v. Strong, 5 Hill, 163. Jewett V. Palmer, 7 Johns. Ch. 65. An assignee for benefit of creditors stands in the same position as other assignees ; the right of counter-claim is created by statute and no extention or variation of the rule is prescribed in case of voluntary assignments for creditors. Hicks v. McGrorty, 2 Duer. 295. In an action by such assignee of a private banker on a note, the defendant may set up, by way of counter claim, the amount of a deposit, although he has never de- manded it. Seymour v. Dunham, 24 Hun. 93. And a bank may set up a protested note against the assignee of a debtor's deposit. Robinson v. Howes, 20 N. Y. 84. An assignee of a judgment, who has collected it, can- not set up against an assignee of the attorney's lien, a draft of the attorney paid by it when it had no funds. Willover v, Olean, 10 Civ, Pro. R. 80, ;2 COUNTER-CLAIM, Note Transferred after Maturity. A note does not mature till the close of the third day of grace. Continental Bk. v. Townsend, 87 N. Y. 9. When a note did not specify any time of payment, but was payable " with use," it was not considered as over due, within the meaning of this act, it it was trans- ferred three days after its date. Weeks v. Pryor, 27 Barb. 79. And claims against the payee, could not be used by way of counter-claim after such transfer. Ibid. When the transfer takes place before maturity of the note, no counter-claim is available, between the original parties. Murray v. Deyo, 10 Hun. 8. Martin v. Kunzmuller, 10 Bosw. 26. There exists no right of set off against the maker, when the note was put in circulation before maturity, unless it was fraudulently placed in circulation ; and not then, as against a bona fide holder for value and in the or- dinary course of business. Smith V. VanLoan,i6 Wend. 659. On a note endorsed after maturity, it was held, that the maker could not set up against the payee a claim, when the payee had other claims sufficient to exhaust the demand. Collins v. Winslow, 12 Wend. 356. A firm note given to one of the members of the part- nership and transferred after maturit3% is open to all set offs in favor of the firm. Sherwood v. Barton, 23 How. 533, UNDER THE CODE. n A person, having n claim against an intestate estate, may use it as a counter-claim in a suit by a purchaser of an over due note, given by defendant for goods purchas- ed at the administrators sale. Ransom v. McCless, 64 N. C. 17. In an action by an assignee, notes of the assignor not due nor in possession of defendant at the time of the as- signment, but subsequently acquired, cannot be set up. Martine v. Willis, 2 E. D. Smith, 524. VanValen v. Lapham, 5 Duer. 689. Butterworth v. Fox, 15 How. 545- Cummins v. Morris, 25 N. Y. 625. Before the enactment of the code the question of admissibility of a set off against an over due note was matter of controversy ; the court were divided upon the question in Bridge v. Johnson, 5 Wend 342. A trustee who has been sued by the receiver of a bank may interpose a debt due from the bank to him in- dividually. Pendergast v. Greenfield, 40 Hun. 495. But, a trustee of moneys for safe keeping cannot set up a debt which he personally owes, against an assignee for benefit of creditors. Detroit Bk. v. Barnum Wire Wks. 58 Mich. 124. See, Foster v. Coe, 4 Lans. 53. Lanier V. Brunson, 21 S. C. 41. When a firm of brokers, having become involved, deposited moneys received as agents for customers, in defendant's bank in the name of a third person, the bank cannot set up a note, discounted by them, against the firm. Falkland v. St. Nich. Bk, 84 N. Y. 145, 74 COUNTER-CLAIM, The rule being that moneys held in trust, so long as they are not mingled with private funds, belong to cestuis que trust. Ibid. Equitable set oflT. Construction. Though, at law, the provisions relative to counter- claim must be construed with strictness, equity will ad- just the rights of the parties, looking rather to its sub- stance than its form. Smith V. Felton, 43 N. Y. 419. And technical objections that would be available at law, will not defeat an equitable set off. Smith V. Fulton, Supra. Pond V. Smith, 4 Conn. 297. Mitchell V. Oldfield, 4 T. R. 123. Dunn V. Elliott, 2 H. Bl. 587. Re. Hanson, 12 Vesey, 346. The equities between an assignor and assignee attend the title when transferred to a subsequent assignee ; and the latter takes the exact position of the vendor. Bush V. Lathrop, 22 N. Y. 538. A person obtaining title to real estate, subject to an existing mortgage, may plead fraud between the parties to the mortgage and have it reduced by set off. Bennett v. Bates, 26 Hun. 364. A defendant may have a right enforcible in equity, when the cross demand is not due at the time of the as- signment, and when it is against an assignee of an insolv- ant ; though it might not have been pleadable at law. Chance v. Isaacs, 5 Paige, 592. In an action by an assignee for creditors of a banker, upon a note made by the individual members of a firm, the firm assets on deposit with assignor may be set up as tJMDER THE CODfi. 75 a counter-claim in equity ; although the note was not due when the assigrnment was executed. '&' Smith V. Felton, 43 N. Y. 419. Smith V. Fox, 48 N. Y. 674. SECTION 503. JUDGMEXX "WHEN COUNTER-CLAIM IS PIvEADED. Where a counter claim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is- less than the plaintiffs demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defend- ant must have judgment for the excess, or so much there- of as is due from the plaintiff. Where part of the excess is not due from the plain- tiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel. 2 Rev. Stats. 355 §§ 21, 22. The last clause is new. This section is not applicable to a reference of a dis- puted claim against the estate of a deceased person under 2 R. S. 88 § 36. No affirmative judgment in favor of the claimant can be rendered. Mowry v, Peet, 88 N. Y, 453, 76 COUNTER-CLAIM Before the provisions of this section were- incorpor- ated into the code ; upon a counter-claim, (or a defence that would now be called a counter-claim,) which was based upon the common law relief of recoupment, no affirmative judgment could be awarded. Batterman v. Pierce, 3 Hill, 171. Sickels V. Patterson, 14 Wend. 257. It was only when the relief was by way of set off, that such affirmative relief could be granted, and this only in cases of liquidated damages. Ogden V. Coddington, 2 E. D. Smith, 317. This provision was intended to abrogate the rule, previously existing and to enable litigants to adjust all diffrences as effectually as they might do by bill and cross-bill in equity. Gleason v. Moen, 2 Duer, 642. Boston Silk Works v. Eull, 37 How. 299. Where the answer contains an admission of the plaintiff's claim, and pleads, by way of counter-claim, a demand for a lesser amount than the claim sued for, plaintiff may enter judgment for the excess, without notice to the defendant. Robbins v. Watson, 22 How. 293. A defendant is not bound to plead his claim as a counter-claim, and may have recourse to a cross-action, although the rights might have been adjusted in a former action. Brown v. Gallaudet, 80 N. Y. 413. A demand that has been interposed as a counter-claim to a former action, even though asking no affirmative judgment, cannot afterwards be made the subject of a separate action. Inslee v, Hampton, 11 Hun, 156, UNDER THE CODE. J7 Having once elected his remedy, a defendant is bound by the choice so made. Idem, citing, O'Connor v. Varley, lo Gray, 231. Hatch V. Benton, 6 Barb 28. Farrington v. Payne, 15 Johns. 432. Draper V. Stouvenel, 38 N. Y. 219. O'Bierne v. Lloyd, 43 N. Y. 248. An assignment ot the claim, after the counter-claim has been pleaded, does not prevent an affirmative recovery. Kline v. Gondrum, 11 Pa. St. 242. When a defendant sets up in his answer a counter- claim, upon which he demands an affirmative judgment, affecting the title to, or the possession, use, or enjoyment of real property, he may, at the time of filing his answer, or at any time afterwards before final judgment, file a like notice. The last three sections apply to such a notice. For the purpose of such an application, the defend- ant filing such a notice is regarded as a plaintiff and the plaintiff is regarded as a defendant. Code of Civ. Pro. § 1673. The three preceeding sections referred to treat of the contents, effect and recording of the lis pendens. § 1674 provides for the cancellation of the notice up- on settlement, discontinuance or abatement of, or rendi- tion of final judgment in the action. The lis pendens cannot be vacated by the court on a motion based upon the insufficiency of the counter-claim, the sufficiency of the pleading cannot be enquired into upon a collateral motion. Haynes v. Mowbray, Patterson J. in Daily Reg. Feb. z8, 1888, 78 COUNTER-CLAIM Where the defendant interposes a counter-claim, and thereupon demands an affirmative judgment against the plaintiff, his right to a provisional remedy is the same as in an action brought by him against the- plaintiff, for the cause of action stated in the counter-claim, and demand- ing the same judgment. And for the purpose of applying to such a case the provisions ol this act, the defendant is deemed the de- fendant, and the counter-claim so set forth in the answer is deemed the complaint. Code of Civ. Pro. § 720. Where the defendant interposes a counter-claim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact, arising thereupon, is the same as if it arose in an action, brought by the defendant, against the plaintiff, for the cause of action stated in the counter-claim, and demanding the same judgment. Code of Civ. Pro. § 974. SECTION 504. AFFIRMATIVE JUDGMENT FOR DEFEND- ANTS. In a case not specified in the last section, where a counter-claim is established, which entitles the defendant to an affirmative judgment, demanded in the answer, judgment must be rendered for the defendant accord- ingly. Code of Procedure, § 363, last clause. UNDER THE CODE. 79 SECTION 505. COUNXER-CI^AIItlS AGAINST ECXECXVORS, &C. In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counter-claim, a demand be- longing to the decedent, or other person whom he rep- resents, where the person so represented would have been entitled to set forth the same, in an action against him. 2R. S. 355- §25, (3 R- S. 6thed. 6i6.) A claim to be available against the representative of a deceased person, need not have been actually due at the time of the decease. If it be due at the commencement of the action, and could have then been pleaded, if the decedent had been alive, it is sufficient. Rawson v. Copwand, 2 Sandf. Ch. 251, And, in an action against the administrator or execu- tor, upon a claim due from the deceased, the representa- tive cannot set up an indebtedness to the latter accruing after the death, although it be a claim payable to him as such representative. White v. Wood, 22 Ala. 442. Barnard v. Jordan, 3 Ired. 268. To permit a person to set off a claim due from the deceased against a suit brought by an administrator or executor upon a demand arising after the decease, would overturn the whole system of distribution to creditors. Thompson v, Whitmarsh, 100 N, Y. 35. COUNTER-CLAIM SECTION 506. COVKXEIl-CLAIM IN FAVOR OF BXECVXORS, ETC. In an action brought by an executor or administra- tor, in his representative capacity, a demand against the decedent, belonging at the time of his death, to the de- fendant, may be set forth by the defendant as a counter- claim, as if the action had been brought by the decedent in his lifetime ; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff in his representative capacity. Execution can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator. 2 R. S. 355. § § 23, 24. A representative of a deceased person, who has sold property of the estate upon credit, may maintain an ac- tion in his own name, and is not liable to have it defeated by a counterclaim of an indebtedness existing against the decedent. Thompson V. Whitmarsh, 100 N. Y. 35. A debt due from a decedent cannot be used as a counter-claim against a demand, which arose in favor of the representative, in an action by the latter. Fry v. Evans, 8 Wend. 530. Irving V. DeKay, 10 Paige, 319. Root V. Taylor, 20 Johns. 137. Mercein v. Smith, 2 Hill, 210. Thompson v. Whitmarsh, 100 N. Y. 35. Wakeman v. Everett, 41 Hun. 278. UNDER THE CODE. 8i So, in an action upon a note given to an executor, though for a debt due the testator, the defendant was not permitted to offer as a counter-claim a demand that ac- crued in the testator's lifetime. Merritt v. Seaman, 6 Barb. 330. It being but just, if a representative, by converting the assets into a note can prevent claims against the in- testate from being set up ; that he should not be permit- ted to use his own debts against a debt due from the de- ceased. Cummins v.. Williams, 5 J. J. Marsh. 384 In an action by an executor, upon a demand due the deceased, the false and fraudulent representation in con- tracting the debt may be set up. Isham v. Davidson. 52 N. Y. 237. And, against such action, damages for cutting and converting timber on the land of the testator. Wall V. Williams, 91 N. C. 477. In an action for rent accruing after the decease, the defendant cannot set up a claim due from deceased in his life-time. Harris v. Taylor, 53 Conn. 500. And any contract made by him as administrator, will not admit of a counter-claim any demand due from the deceased. McLaughlin v. Winner, 63 Wis. 120. But services rendered for the preservation of the es- tate after the decease, have been allowed. Davis v. Stover, 58 N. Y. 473. And funeral expenses have also been so regarded. Barnabee v. Green, 86 N. C 158, ^ 82 COUNTER-CLAIM In an action to recover a debt due the testator in his lifetime, the defendant will not be permitted to set up as a counter-claim his share in the estate as next of kin. Woodhouse v. Woodhouse, ii Week. Dig. 241. But, an executor may set up against a claim for a legacy a debt due to the estate, even though it be barred by the Statute of limitations. In re Bogart, 28 Hun. 466. A claim purchased by the personal representative, cannot be interposed against a creditor's demand, if the claim was purchased after the decease. McClenahan v. Gotten, 83 N. C. 332. SBCTION 507. SEVERAL COUNTER-CLAIMS OR DEFENSES; HOW PLEADED. A defendant may set forth, in his answer, as many defenses or counter-claims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defense or counter-claim must be sepa- rately stated and numbered. Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer. Code of Procedure, part of Section 150. This provision allows the defendant to put m as many defenses or counter-claims as he may have ; and the objection of inconsistency between them is not avail- able, Bruce v. Burr, 67 N. Y. 237, UNDER THE CODE. 83 Each defense or counter-claim must be complete in itself, and must be regarded, when a question as to its sufficiency arises, as if it were pleaded alone. Ayers v. Covill, 18 Barb. 260. Hamer v. McFarlin, 4 Denio, 509. Spencer v. Babcock, 22 Barb. 326. Loosey v. Orser, 4 Bosw. 391. Benedict v. Seymour, 6 How. 298. f f not complete, of itself, it will not be aided by other defenses, nor can it be rendered sufficient by joining two or more pleadings together. Ayrault v. Chamberlain, 33 Barb. 229. Ritchie v. Garrison, 10 Abb. 246. Ryle V. Harrington, 4 Abb. 421. This, however, does not prevent a pleader, in order to avoid unnecessary repetition, from making reference to other portions of the pleading for mere formal statements. Xenia Bk. v. Lee, 7 Abb. 372. Sinclair v. Fitch, 3 E. D. Smith, 677. As, by referring to a note described in another plead- ing, the necessity of again reciting it at length is obviated. Williams v. Richmond, 9 How. 522. The formal commencement of each pleading, is not matter of moment ; any words that adequately express the intention of the pleader are deemed sufficient. Benedict v. Seymour, 6 How. 298. Lippencott v. Goodwin, 8 How. 242. Bridge v. Payson, 5 Sand. 210. The object of this provision being that each pleading may stand upon its own merits, and that its sufficiency may be tested by demurrer. Benedict Y. SeymQUr, sufra. 84 COUNTER-CLAIM The only safe rule is, to indicate by fit and appropri- ate words, where the statement oi action or defense com- mences and where it concludes. Lippencott v. Goodwin, supra. And, an introduction to a defense is formally suffi- cient which uses the words "and for a further defense," or other pleading, as the case may be. Benedict v. Seymour, supra. But, one which simply begins " and defendant further says," does not specify with the requisite clearness,the de- fense which it introduces. Lippencott v. Goodwin, supra. This section is intended to permit a pleading to em- brace equitable causes of action, affecting the equitable right of the plaintiff to enforce his legal cause of action. Cramer v. Benton,, 60 Barb. 216. SKCTION 508. PARXIAI, DEFENSES. A partial defense may be set forth as prescribed in the last section ; but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action, therein set forth. Upon a demurrer thereto, the question is, whether it js sufficient for that purpose. UNDER THE CODE. 85 Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a prom- ise to marry, or for a personal injury, or an injury to property, is a partial defense, within the meaning of this section. New ; not in Code of Procedure. Any facts that tend to disprove malice on the part of the defendant may be pleaded as a partial defense. Wandell v. Edwards, 5 Hun. 498. Bradner v. Faulkner. 93 N. Y. 515. The pleading of a partial defense will be construed with liberality, and will not be stricken out when it con- tains any of the elements of such defense. Walter v. Fowler, 85 N. Y. 621. An answer pleaded to the complaint as a whole, but which is insufficient for that purpose ; will be adjudged bad on demurrer, although it might have been permiss- able as a partial defense if pleaded as such. McMahan v. Spinning, 51 Ind. 187. Peck V. Parchin, 52 Iowa, 46. Fitzsimmons v. Insurance Co. 18 Wis. 234. Matters in mitigation of damages, are proper basis for a partial defense, if they are so pleaded ; but are not available unless they are so set up. Bennett v. Matthews, 64 Barb. 416. CouNter-claim SECTION 509. DEniABiD FOR AFFIRMAXIVE JUDGMENX. Where the defendant deems himself entitled to an affirmative judgment against the plaintiff, by reason of a counter-claim interposed by him, he must demand the judgment in his answer. Not in Code of Procedure. To authorize an affirmative recovery, there must be a demand therefor in the answer. Shute V. Hamilton, 3 Daly. 462. Dewey v. Hoag, 15 Barb. 365. The amount demanded in the pleading is the limit of defendant's right of recovery. Annis v. Upton, 66 Barb. 370. SECTION 511. ADiniSSION OF PART OF Pl^AlNTIFF'S CLAIM. Where the answer of the delendant,expressl3- or b}' not denying, admits a part of the plaintiff's claim to be just, the court, upon the plaintiff's motion, may, in its discre- tion, order that the action be severed ; that a judgment be ordered for the plaintiff tor the part so admitted, and if UNDER THE CODE. 87 the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff's election. If the plaintiff elects to continue the action, his right to costs upon the judgment is the same as if it was taken in an action brought for only that part of the claim. If the plamtiff does not elect to continue the action, costs must be awarded, as upon final judgment in any other case. Code of Procedure; a portion of Section 244. This section is only applicable when a specific admis- sion is made of a definite sum due. Dolan V. Petty, 4 Sand. 673. Or, of the ownership of the fund or property in con- troversy; an admission of the possession of the fund as alleged, but no definite concession of its ownership, will not bring it within this provision. Bender v. Sherwood, 15 How. 258. The refusal to grant an order of severance is appeal- able to the general term. Bradbury v. Winterbottom, 13 Hun. 536. It is equally applicable to equitable and legal actions ; the language of the section is broad and not limited to any particular class of actions. Hall V. Holt, 25 Hun. 277. In a proceeding to foreclose a mortgage, when the answer admits, by not denying, the allegations of the complaint, and avers a payment on account of indebted- ness, the plaintiff may admit the payment and move to enter judgment for the balance so found to be due. Hall v. Holt, supra. 88 COUNTER-CLAIM, In action against maker and indorsers of a promissory note, when tiie maker has interposed no answer, the suit may be severed and proceeded with as to the indorser alone. Fleishman v. Stern, 6i How. 124. And where two causes of.action are set up in the com- plaint, upon one only of which an issue is presented, the order should be made upon proper application. Bradbury v. Winterbottom, supra. Quintard v. Secor, 3 E. D. Smith, 614. Russell V. Meacham, 16 How. 193. Tracey v. Humphrey, 5 How 155. It is applicable when an admission is made in plead- ing of a portion of a demand upon a note. Guiet V. Murphy, 18 How. 411. Baker v. Nussbaum, i Hilt. 549. And to cases in which an offer for judgment, of a portion of the indebtedness sued for, has been made. Merritt v. Thompson, 3 E. D. Smith, 599. Meyers v. Trimble, 3 E. D. Smith, 607. Dusenbury v. Woodward, i Abb. 443. The order can only be made where there has been an admission of a part of the plaintiff's claim ; it does not ap- ply to pleadings that admit the whole ; in this case a judgment should be entered for the demand. Slawson v. Conkey, 10 How. 57. The granting of the order is discretionary. Lawton v. Shepherd, 5 Week. Dig. 319 And has been refused, when it appeared that the amount had been tended to the plaintiff and he refused to accept it. Smith V, Olssen, 4 Sandf, 711, St, John V, Thorne, 2 Abb, 166, UNDER THE CODE, 89 As, when an answer admits a specific portion of the claim to be due the plaintiff, but alleges that it had been frequently offered and refused. St. John V. Thorne, supra. Or, when previous to the commencement of the ac- tion, a written offer, allowing the plaintiff to take judgment for the amount claimed. Smith V. Olssen, supra. SECTION 512. JUDGMEIVX WHEN COUNTER-CLAIM IS SMALIvER THAN PLAINTIFF'S DEMAND. In an action upon contract, where the complaint demands judgment for a sum of money only, if the de- fendant, by his answer, does not deny the plaintiff's claim but sets up a counter-claim amounting to less than the plaintiff's claim, the plaintiff, upon filing with the clerk an admission of the counter-claim, may take judgment for the excess, as upon a default for want of an answer. The admission must be made a part of the judgment roll. Code of Procedure, Section 246, partially. It was holden under the provisions of § 246 of the former code, that upon an admission of the defendant's counter-claim and the taking of a judgment lor the bal- ance, that no notice of assessment of costs by the clerk was necessary. Robbins v. Watson, 22 How. 293. $0 COUNTER-CLAIM SECTION 513. VERIFICATION OF DILATORY DEFENSE. A defense which does not involve the merits of the action, shall not be pleaded, unless it is verified as pre- scribed in title second of this chapter. See 2 R. S. 352. § 7. SKCTION 514. REPLY. "Wbeti Reply is Required. Where the answer contains a counter-claim, the plaintiff, if he does not demur, may reply to the counter- claim. The reply must contain a general or specific denial of each material allegation of the counter-claim, contro- verted by the plaintiff, or of any knowledge or informa- tion thereof sufficient to form a belief, and it may set forth in ordinary and concise language, without repeti- tion, new matter not inconsistent with the complamt, constituting a defense to the counter-claim. A portion of section 153 of the Code of Pro- cedure. UMd£R the code. 91 ^iriien it must be Pleaded. A reply is practically an answer to the cross-action o( the defendant, and is, therefor, required only when the defendant has pleaded a cause of action by way of coun- ter-claim, which it is necessary for the plaintiff to traverse in order to present an issue. Kimberling v. Hall, 10 Ind. 407. Vassear v. Livingston, 13 N. Y. 249. Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614. Every defense not constituting a counter-claim is deemed by the Code to be controverted, and the plaintiff, without specially pleading it, is entitled to the benefit of every possible answer to it, and evidence is admissible which, by either legal or equitable principles would traverse it. Arthur v. Homestead Ins. Co. 78 N. Y. 462. Dillon V. Sixth Av. R. R. 14 J. & S. 21. Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614. Reply Cannot Contain Counter-claim. A reply to a counter-claim cannot set up a counter- claim in answer to the defendant's. Hatfield v. Todd, 13 Civ. Pro. 265. This case was in affirmance of the principle laid down in Cohn V. Hussan, 66 How. 150. This, however, is permissible in some states. Reilly v. Rucker, 16 Ind. 303. Turner v. Simpson, 12 Ind. 413. And see, also, Miller V. Losee, 9 How. 356. Ormsbee v. Brown, 50 Barb. 436, 92 COUNTER-CLAIM A reply to a counter-claim cannot be used to aid a defective pleading in the complaint. Lablache v. Kirkpatrick, 8 Civ. Pro. R. 256. Durbin v. Ward, 16 Ohio St. 533. Willson V. Harris, 68 Iowa, 443. Reply to a counter-claim must be distinct and ex- plicit, so as to raise a clear issue. The remedy for its insufficiency jn this respect may be by motion to make more definite and certain. Risley v. Carll, i Law Bull. 52. Mattison v. Smith, 19 Abb. 288. A reply to a counter-claim which is not properly connected with the subject of the action, raises a material issue. Thomas v. Loaner's Bk. 38 Supr. 466. The reply must be consistent with the allegations of the complaint. Fanning v. Hibernia Ins. Co. 37 Ohio St. 344. Benson v. Stein, 34 Ohio St. 295. Thomas v. Loaners' Bk. 38 Superior, 466. And, inconsistency between the averments of the com. plaint and the reply, or material contradictions between them, will justify a demurrer to the reply. Haas V. Shaw, 91 Ind. 384. Laws V. Carner, 2 Cin. Rep. 80. Inman v. Inman, 3 Mo. App. 596. As, where the reply shows that the capacity in which the plaintiff instituted his action, was not the proper capacity to enable him to prosecute it successfully. Laws v. Carrier, 2 Cinn. Rep. 80. Or, where the reply shows that the defendant's lia- bility was that of guarantor, when the complaint seeks to recover against him as an original promissor. Philbert v. Burch, 4 Mo. App, 470, UNDER THE CODE. 93 But, where a reply alleged a special ownership of property for the conversion of which suit was brought, and the complaint simply declared upon an ownership generally, it was held not to be a departure. Merchants' Bk. v. Richards, 6 Mo. App. 454. The rule, however, is somewhat relaxed, when the counter-claim is in no way connected with the subject of the action. Thomas v. Loaners' Bk. 38 Superior, 466. An answer to an action to recover the purchase money for a piece of land, which alleges that a deed and the contract sued on constituted a mortgage and pleaded usury, demanding as a judgment, that the deed and con- tract be declared void, must be replied to. Geenia v. Keech, 66 Barb. 245. In an action for a divorce, where a counter-claim, al- leging plaintiff's adultery has been pleaded, a reply is necessary. Leslie v. Leslie, 11 Abb. N. S. 311. A reply which contains a denial of all the allegations contained in the answer between certain specified folios is sufficient. Gassett v. Crocker, 9 Abb. 39. But, a reply that simply denies that the defendant is entitled to recover any sum whatever, upon his counter- claim, is bad. McKensie v. Farrell, 4 Bosw. 192. The cause of action set forth in the complaint must not be again set up by the reply. Stewart v. Wallis, 30 Barb. 344. Shall v. Green, 49 Barb. 311. A denial simply upon information and belief, where it appears that the facts are clearly within the plaintiff's knowledge, is bad. Fallon v, Durant, 60 How. 178, 94 COUNTER-CLAIM, An answer of payment is not such new matter as to justify a reply. Kirk V. Woodbury Co. 55 Iowa, 190. Nor, will an answer setting up a former adjudication. Carleton v. Byington, 24 Iowa, 172. Nor, an answer denying that the note sued upon was the note of the defendant. Walker v. Woolen, 54 Ind. 164. In fact, any answer that puts in issue simply the material allegations of the complaint, does not call for a reply. Bayliss v. Murray, 69 Iowa, 290. A denial of each and every allegation of the answer is a good averment in reply. Cleveland v. Worrell, 13 Ind. 545. ■Waiver of Reply. When the parties proceed to trial without a reply and evidence is taken as though the averments of the an- swer had been properly traversed by a denial, the defend- ant will be deemed to have waived the want of a reply. Gibbs v. Dickson, ;^^ Ark. 107. Nooner v. Short, 20 Kas. 624. State v. Williams, 77 Mo. 463. Woodward v. Sloan, 27 Ohio St. 592. McAlister v. Howell, 42 Ind. 15. Breitert V. Krueger, 62 Ind. 142. UNDER THE CODE. 95 SECTION 615. FAILURE TO REPLY. If the plaintiff fails to reply or demur to the coun- ter-claim, the defendant may apply, upon notice, for judgment thereupon; and if the case requires it, a refer- ence may be ordered, or a writ of enquiry may be issued as prescribed in chapter eleventh of this act, where the plaintiff applies for judgment. Compare Section 154 of Code of Procedure. For preceedings upon application for judgment, and notice thereof, see. Code Civ. Pro. Section 12 19. By a failure to reply, the plaintiff simply admits the counter-claim, and defendant is not entitled to judgment for the amount of his claim, but for the balance only. Kelsey v. Treraaine, 29 How. 439. Failure to Reply. A failure to reply cannot be taken advantage of for the first time on appeal. Lush V. Adams, 10 Civ. Pro. R. 60. Hopkins v. Lane, 2 Hun. 38. Jordon v. Shoe & L. Bk. 74 N. Y. 467. A service of a notice of trial is a waiver of the failure to reply to an answer containing a counter-claim. Reilley v. Byrne, i Civ. Pro. R. 201. A plaintiff who fails to reply may still bring his cause on for trial by notice ; but the court refused to place it upon the special calendar for want of an issue properly presented. Adams V, Roberts, i Civ, Pro. R. 204, 96 COUNTER-CLAIM Reply to counter-claim which is alleged to have arisen both in tort and contract may traverse either, and will be held sufficient on demurrer. Luddington v. Slauson, 38 Supr. 81. By failing to reply the plaintiff admits the truth of the counter-claim. Clinton v. Eddy, 54 Barb. 54. Lawrence v. Bank, 3 Rob. 142. Bird V. Lanius, 7 Ind. 615. And the advantage of admission in pleading may be taken advantage of on the trial and are not waived by a failure to apply for judgment. Bridge v. Payson, 5 Sand. 210. A failure to reply to a bad answer does not entitle the defendant to judgment for failure to reply. DeBord v. LaHue, 26 Ind. 212. The motion for judgment must be made to the court. Aymer v. Chase, 12 Barb. 301. A judge sitting at chambers has no power to order the judgment. Ibid. SECTION 516. REPI^Y TO JSEW MAXXER MAY BE RE- QUIRED. Where an answer contains new matter, constitut- mg a defense by way of avoidance, the court may, in its discretion, on the plaintiff's application, direct the plain- tiff to reply to the new matter. UNDER THE CODE. 97 In that case, the reply, and the proceedings upon fail- ure to reply, are subject to the same rules as in the case of a counter-claim. Code of Procedure, embracing the final para- graph of Section 153. When the new matter simply goes to the plaintiff's right to maintain his action, and does not set up an affirm- ative cause of action, no counter-claim is necessary, un- less directed by the court. Vassar v. Livingston, 13 N. Y. 249. And when the facts are so within the knowledge of the defendant, that he knows with reasonable certainty the issue that will be presented to his answer, the court will not compel a reply. Hubbell V. Fowler, i Abb. N. S. i. Jarvis v. Pike, 11 Abb. N. S. 398. It is not required when the allegations of the answer amount to a general denial or traverse. Dayton Ins. Co. v. Kelly, 24 Ohio St. 354. Wilson V. Fuller, 9 Kas. 177. Where new matter is pleaded in the answer, the fact that the plaintiffs are representatives of a deceased per- son, presents no reason why they should not be required to reply. McGin v. Torrens, 4 Law Bui. 29, In a suit by a widow for a benefit due on account of her husband's death, when the answer set up fraudulent representations and the lapsing of the policy for non-pay- ment, a reply was ordered. Schwan v. Mut. Trust and Life Ass. 9 Civ. Pro. R. 82, 7 98 COUNTER-CLAIM In an action to recover dower, the court will require a reply to an answer setting up a divorce against the plaintiff. Brinkerhoff v. Brinkerhoff, sJfAbb. N. C. 207. A release pleaded by defendant is new matter which does not necessarily require a reply. Dambmann v. Shaking, 4 Hun. 50. Nor does a denial that plaintiff is the proper party in interest. Johnson v. White, 6 Hun. 587. A reply to new matter, interposed when the answer does not demand a reply, will be stricken out, if pleaded without a previous order of court. Dillon V. Sixth Av. R. R. 46 Superior, 21. And, a reply will only be ordered upon the defend- ant's application ; the plaintiff can not obtain such order. McDonald v. Davis, i Law Bui. 20. The new matter, to which a reply may be permitted, is such matter as must be affirmatively pleaded. Mash v. St. Paul, 11 Minn. 174. Evans v. Stone, 80 Ky. 78. A reply once interposed is good as a reply to an amended complaint, if the amendments introduced noth- ing requiring a reply. Leslie V, Leslie, 11 Abb. N. S. 311. UNDER THE CODE. 99 Reply, when ordered to the statute of limitations pleaded by defendant, must appraise the opposite party of the issue to be raised upon it, it is not sufficient to simply deny it. Jarvis v. Pike, 11 Abb. N. S. 398. The statue of limitations to be available as a bar to a counter-claim, must be pleaded in reply. Williams v. Willis, 15 Abb. N. S. 11. Clinton v. Eddy, 54 Barb. 54. A plea ot discharge in bankrupty does not contain al- legations that need be replied to. Argall V. Jacobs, 87 N. Y. no. But, plaintiff must plead it in reply to a counter- claim, or it vwU not be available to him in avoidance. Raymond v. Baker, 66 Barb. 605. SKCTION 517. SEVERAI. AVOIDANCES IN REPLY. A reply may contain two or more distinct avoidances of the same defense or counter-claim ; but they must be separately stated and numbered. New. This provision was intended to abolish the stringent rule of the gommon law, which forbids duplicity in a replication, lOO COUNTER-CLAIM DEiaiJRRBR. Effect of. On a demurrer to an answer on the ground of its in- sufficiency, the defendants are at liberty to attack the complaint, if it does not state facts sufficient to constitute a cause of action. People V. Booth, 32 N. Y. 397. People V. Banker, 8 How. 261. Wright V. Booth, 69 N. Y. 620. And a demurrer to a reply brings up the sufficiency of the previous pleadings. .iEtna Ins. Co. v. Baker, 71 Ind. 102. Hancock v. Fleming, 85 Ind. 571. Reed v. Higgins, 86 Ind. 143. Wilhite V. Hamrick, 92 Ind. 594. And a demurrer to a counter-claim contained in an answer has the same effect, and will be overruled if the complaint fails to state facts that constitute a cause of action. Willover v. Bank of Olean, 10 Civ. Pro. R. 80. SBCTION 493. TO REPLY. The defendant may also demur to the reply, or to a separate traverse to, or avoidance of, a defense or coun- ter-claim, contained in the reply, on the ground that it is insufficient in law upon the face thereof. Based upon section 155, Code of Pro, UNDER THE CODE. loi Before the code expressly authorized it, a reply could not be demurred to. White V. Joy, 13 N. Y. 83. Thomas v. Loaners' Bank, 38 Supr. 466. An inconsistency, between the allegations of the reply and those of the complaint, furnishes a ground for de- murrer. Haas V. Shaw, 91 Ind. 384. Beard v. Hand, 88 Ind. 183. Inman v. Inman, 3 Mo. App. 596. Lawsv. Carrier, 2 Cinn. Rep. 80. SECTION 494. DEMURRER TO AXS^WER. The plaintiff may demur to a counter-claim or de- fense consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof. A portion of section 153, Code of Pro. A breach of a contract set up in counter-claim must be clearly alleged or a demurrer will lie to the pleading. Gardner v. Langdon, Daily Reg. March 15, 1888, 162 COUNTER-CLAIM SECTION 495. XO COUNTER-CLAIM. The plaintiff may also demur to a counter-claim, up- on which the defendant demands an affirmative judge- ment, where one or more of the following objections thereto, appear on the face of the counter-claim : 1. That the court has not jurisdiction of the subject thereof. 2. That the defendant has not legal capacity to re- cover upon the same. 3. That there is another action pending between the same parties for the same cause. 4. That the counter-claim is not of the character specified in section 501 of this act. 5. That the counter-claim does not state facts suffi- cient to constitute a cause of action. New. To Counter-claim. A defective pleadmg by way of counter-claim must be taken advantage of by demurrer. Fettrech v. McKay, 47 N. Y. 426. A demurrer to a counter-claim that it does not state facts sufficient to constitute a defense to the complaint is insufficient. Armour v. Leslie, 39 Supr. 353, UNDER THE CODE. 103 The allegations of a complaint which are not incon- sistent with the counter-claim are to be taken as admitted, upon demurrer to the latter. Graham v. Dunnigan, 6 Duer. 629. When a counter-claim is demurred to because it is not of a character specified in section 501, it admits that it states sufficient ground to constitute an action. Grange v. Gilbert, 10 Civ. Pro. 98. SECTION 496. FOSLM OF DEMITRRER. A demurrer, taken under the last section, must dis- tinctly specify the objections to the counter-claim ; other- wise it may be disregarded. The mode of specifying the objections is the same as where a demurrer is taken to a complaint. New. As to a demurrer, taken under this section which as- signs as cause for demurrer that it does not state facts " sufficient to constitute a cause of action," see Armour v, Leslie, 39 Supr. 358, I04 COUNTER-CLAIM, SECTION 2938. COlTNXBR-CLAIinS IN JUSTICES' COURTS. Ans-wer may contain Counter-claim. The answer may contain a general denial of each al- legation of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in plain and direct manner, new matter constituting one or more defenses or counter- claims. Code of Pro. § 64. subd. 4. A demurrer may be interposed, if a pleading set up as such, does not state facts sufficient to constitute a co\inter-claim. Code of Civ. Pro. § 2939. SECTION 2945. APPLICATION OP GENERAL RULES. Sections 501 and 502 of this act apply to a counter- claim in an action brought in a justice's court ; except that such a counter-claim cannot be interposed unless it is of such a nature that a justice's court has jurisdiction of a cause of action founded thereon. See a R, S, 324, § $0, UNDER THE CODE. 105 This section affords a defendant the same remedy as a counter-claim in courts of record, and defendant may recover an amount not exceeding the jurisdiction of the justice, beyond the plaintiff's claim. Williams v. Bitner, i Lans. 200. An objection to the counter-claim must be made be- fore submission to the jury ; or will be regarded as waived. King V. Fuller, 3 Cai. 152. SKCTION 2946. 'where; EXEcrxoR or admiivistraxor IS A PARTY. Sections 505 and 506 of this act apply to a counter- claim in an action against a person sued in a representa- tive capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintiff, upon a counter-claim, for a sum exceeding two hundred dollars. See 2 R. S. 234 § § 55 and 56. Negflect to plead Counter-claim. Where the defendant, in an action to recover dam- ages upon or for breach of a contract, neglects to inter- pose a counter-claim consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof. a R, S, ?34, § 37' io6 COUNTER-CLAIM A defendant is not bound to set up as a counter- claim, a joint and several note with plaintiff and another. Culver V Barney, 14 Wend. 161. A judgment pleaded as a counter-claim, and passed upon by a jury, is extinguished. McGuinty v. Herrick, 5 Wend. 240. SECTION 2948. QUALIFICAXION OP PRECEEDING SECXIOPI. But the prohibition contained in the last section does not extend to either of the following cases : 1. Where the amount of the counter-claim is two hundred dollars more than the judgment which the plaintiff recovers. 2. Where the counter-claim consists of a judgment, rendered before the commencement of the action, in which it might have been interposed. 3. Where the counter-claim consists of a claim for unliquidated damages. 4. Where the counter-claim consists of a claim, up- on which another action was pending, at the time when the action was commenced. 5. Where judgment is taken against the defendant, without personal service of the summons upon him, or an appearance by him. See 2 R, S. 234, § 58; Laws of 1840, ch. 317. UNDER THE CODE. 107 SECTION 2949. JUDGMEPtX -WHBK COXTBJXEir-CI^AIM IS PLEADED. Where a counter-claim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defend- ant must have judgment for the excess, or so much there-, of as is due from the plaintiff, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either : J . Set off so much of the counter-claim as is sufficient to satisfy the plamtiff's demand, and render judgment for the defendant for his costs ; in which case the defendant may maintain an action for the residue ; or 2. Render a judgment of discontinuance with costs ; in which case the defendant may thereafter maintain an action for the whole. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel. Compare 2 R. S. 234, § § 52, 53, 58. io8 COUNTER-CLAIM Where the plaintiff entirely fails to maintain his ac- tion the defendant is entitled to judgment for the full amount of his counter-claim. Greenleaf v. Low, 4 Den. 168. SECTION 2950. 'Wtien Xotal Amount of Claims Exceeds Four Hundred Dollars. Where, upon the trial of an action, the sum total ot the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs. 2 R. S. 234, § 54. T09 INDEX. A. ACCOUNTING, counter-claim in, 22 not before judgment, 52 ACTION, ON ASSIGNED CLAIM, 66- 71 principle relative to, 66 existing demand, 66 notice of, 67, 70 purely statutory. 67 how defeated. 67 what may be. assigned, 68 of waived tort. 69 by bank. 7°, 71 assignee for creditors. 71 ACTION, not maintainable on counter-claim, II "ACTION ON CONTRACT," 3~~ 34 waiver of tort, 33 judgment. 33 foreclosure, 33 ACTION FOR CHATTEL, see CHATTEL. AD DAMNUM, of counter-claim. 17 ADJUDICATION, effect of former, 10 when a bar. II ADMISSION, of part of claim, 86- 89 appeal from denial of severance. 87 applicable to equity, 87 foreclosure, 87 order of severance, 88 ADULTERY, counter-claim in divorce. 42 separation, 43 no INDEX AFFIRMATIVE JUDGMENT, 78 counter-claim must authorize, 22 against State, 26 United States, 27 demand for, 86 AGENT, and principal, 10, 23 waiver of tort of, 33 action for conversion by, 35 money received by, 35 goods sold by, 35 ALLEGATIONS, in pleading counter-claim. 15- 16 AMENDMENT, in partnership action, 13 ANNUITY, assignment of. 63 ANSWER, contents of I cannot be same as counter-claim, 7 defense not a counter-claim, 8 nor fraud. 8 reply to. 90- 99 when necessary, 93> 94 ASSAULT, not included in "same transaction." 28, 29 by plaintiff, cannot be set up, 35. 36 ASSIGNEE, set oft against. 37 of insolvent bank, 38 note. 59 other contract. 59 ASSIGNMENT OF CLAIM, 60- 66 judgment. 61 conversion. 61 loss by carrier, 61, 62 negligence. 62 personal injur}'. 62 expectant estate, 63 legacy. 63 annuity. 63 guaranty. 63 insurance policy, 63 dower right. 64 seduction. 64 tort. 64 lien for freight, 64 INDEX III Assignment of Claim: — Continued. of mechanic, 65 sheriff's misfeasance, 65 negligence, 65 fees of public officer, 65 fraud and deceit, 66 after maturity, 72, 73 of note, 72, 73 open to defenses, 72 see Action on Assigned Claim, ATTORNEY, want of skill as counter-claim, 31, 37, 54 off-set of services against collection, 36 lien not defeated by set off, 36 B. BANK, set off against deposit, 37 collateral, 37 stock against note, 37, 38 of note, 38 deposit against mortgage, 38 penalty for using, 38 BANKRUPTCY, reply to plea of, 99 BROKER, set off of margins against, 39 C. CAUSE OF ACTION, counter-claim must be, ' 9, 40 pleading must show, 15, 22 tort arising out of, 56, 57 CHATTEL, ACTION FOR, 39, 40 lien for labor against, 39 conversion of security, 39 warranty of quality, 39, 58 lien for keeping animal, 40 rent, 40 COLLECTOR OF TAXES, 55 no set off against taxes collected, 58 COMMON CARRIER, injury to goods, 40 loss of goods, 40 damages for delay, 40 for non-delivery, 40 negligence, 50 assignment of, 63 112 INDEX CONSTRUCTION, of Statute, 13 liberal, 13 pleading, 16 CONTRACT, previous adjudication on. 10 action on, 32-35, 40, 43 waiver of tort. 33 judgment is, 33. 41 not pleadable in tort. 41 CONVERSION, counter-claim in action for, 31, 57 waiver of fraudulent. 33 of collateral security. 39 goods sold, 45 assignment of. 61 CONVEYANCE, action to set aside, 30 CORPORATION, counter-claim by, 25, 44 against. 44 COUNTER-CLAIM, how set up, I nature of the remedy. 36, 20, 21 origin of. 3 construction of statute, 13 implies cross demands, 6 to prevent litigation. Z includes set off 7 recoupment. 7 for unliquidated damages. 7 answer cannot be pleaded with. 7 pleading must be definite. 8 fraud not a. 8 nor, plea of satisfaction, 9 nor, denial of validity. 9 cause of action. 9 must be complete action, 9, 22, 23 election between, and suit 9, 10 in action on judgment. 10 judgment on, effect of, II waiver of. II discontinuance of, II, 12, 13 how pleaded. 14 ad damnum of, 17 limitation of, 17 INDEX 113 Counterclaim — Continueci. verification, 17 definition of, 18, 19 must diminish recovery, 20 against public officers, 21 parties to, 24- 27 in assault, 28 ejectment, 30 trade mark. 30 trespass, 29 negligence, 29 due at commencement of suit. 34 then owned by defendant, 34 of assigned claim, 60, 66 provisional remedy on, 78 against executors. 79 in favor of 80 demurrer to. 102 in justices' courts, 104, 105, 106 several, 82- 84 may be inconsistent. 82 must be complete. 82 refer one to another. 83 form of pleading, 84 COVENANT, to repair. 42 in action for occupation. 42 to convey, 53 for quiet enjoyment, 46 repairs by landlord. 47 D. DAMAGES, as set off or separate suit. 10 DEFECTIVE WORK, recoupment for. 5 counter-claim for. 31 DEFENSE, plea cannot embrace set off and 7 with affirmative demand. i6 DEFICIENCY, in foreclosure is "contract," 48 DEMAND, in tort. 33 when due, set off, 34 payable, 34 114 INDEX DEMURRER, loo- 103 effect of in general, 100 to reply, 100 new matter, 10 1 counter-claim, 102 form of 103 DILATORY DEFENSE, verification of, 90 DISCONTINUANCE, of counter-claim, 11,12, 13 effect of 3 2 DIVERSION, of stream, counter-claim for, 32 DIVORCE, counter-claim in absolute, 42, 43 limited, 43 must state cause of action, 43 DOWER, no counter-claim, generally, 44 if damages claimed, 44 assignment, 64 reply in when necessary, 98 E. EJECTMENT, defendant's title not counter-claim, 10 equitable title against, 33 generally, 30 ELECTION, between counter-claim and action, 9, 12 EQUITABLE SET OFF, 38, 74, 75 of judgment, 46 in real action, 53, 74 not defeated by technicality, 74 EQUITY, construction of statute of set off, 14 EXECUTORS, counter-claim against, 79 in favor of, 80 upon note to, 81 demand due deceased. Si EXPECTANT ESTATE, assignment of 62 FAILURE TO REPLY, 95, 96 how taken advantage of, 95 waived, 95 admits counter-claim, 96 motion for judgment on, 96 INDEX 115 FORECLOSURE, of mortgage, 9,48, 49 counter-claim in, 20, 21 claim for deficiency, 48, 49 fraudulent representations, 49 fraud when set up, 49 invalidity of, 49 usury. 49 breach of warranty. 49 assignment of, 64 of Mechanic's lien. 9, 48 rent against. 48 on wife's property. 48 deficiency. 33, 41, 48 FRAUD, in contract not a counter-claim, 8 representations, 3°. 44 foreclosure. 49 waiver of. 33 arising from "same transaction," 44 not assignable. 66 FREIGHT, claim set off by carrier, 41 assignment of, 61, 62 G. GAMING, money lost at. 33, 41 GOODS SOLD, 40- 45 by agent. 35 loss by carrier. 40 injury to by carrier, 40 failure to ship. 41 non-delivery of. 41 breach of warranty in. 45, 58 note for. 45 specific delivery of. 41 conversion of. 45 GUARANTY, assignment of 63 H. HUSBAND AND WIFE, 25, 48 counter-claim in suit by, 25 claim against husband, I. INCAPACITY, to contract is new matter, 48 3 ii6 INDEX INSURANCE, claim for loss in action to cancel, 44 assignment of J- JOINT DEFENDANTS, counterclaim as to, 23, 24, 26 JUDGMENT, action on, 10 on counter-claim, 11 is contract, 33, 41, 45 of Justices' Court, 46 equitable set off of 46 action to satisfy, 46 assignment of, 61 when counter-claim is pleaded, 75, 76 is smaller, 89 on failure to reply, 96 JUSTICES' COURTS, 104- 108 judgment in, 46 counter-claim in, 104, 105 neglect to plead, 105 rules relating to, 106 judgment on counter-claim, 107, to8 I.. LANDLORD AND TENANT, 46- 48 partial eviction set up, 46 damage for leakage, 46 untenantableness of premises, 46 covenant for quiet enjoyment, 46 repairs, 47 in summary proceedings, 47 LEGACY, assignment of, 63 LEX FORI, governs counterclaim, 14 LIBEL, not set up against assault, 28 LIEN, Mechanics' lien, see Foreclosue, of attorney, not defeated by set off, 36 workmen in action for chattel 39 assignability of, 64, 65 LIMITATION, of counter-claim, 17 as to assignee, 59 trustee, 59 LIS PENDENS, upon counter-claim, 77 vacation of, 77 LOCAL ACTION, where pleaded as set off, 14 INDEX 117 M. MALPRACTICE, action barred by judgment for services, 11 MECHANICS' LIEN, see Foreclosure, MISREPRESENTATION, recoupment of, 4 counter-claim, 3c, 44 waiver of, 33 action for, not assignable, 66 MISTAKE, moneys paid by, 33, 41 MONEY RECEIVED, by agent, 35 attorney, 36 MORTGAGE, see Foreclosure, MOTION, for leave to discontinue. MUNICIPALITY, counter-claim against, 21 none against taxes, 55, 56 N. NATURE of set off, 3 recoupment, 4 counter-claim, 7 NEGLIGENCE, recoupment for 6 counter-claim in, 29,31, 50 in action for services, 50 improper work, 50 of landlord, 50 carrier, 50 assignment of, 62 NEW MATTER, what constitutes, i allegation of illegality, 2 usury, 2 incapacity to contract, 2 payment, 2 release, 2 mere matter of defense, 2 reply to, 96- 99 when necessary, 97 demurrer to 10 1 NOTE, see Promissory Note. O. OBJECTION, to counter-claim when made, 13 OCCUPATION, recoupment in action foi, 5 breach of contract, against, 4? ii8 INDEX PARTIAL DEFENSE, 84, 85 matter in mitigation, 85 liberal construction of, 85 PARTIES, to counter-claim, 22- 27 principal and agent, 23 partners, 23, 24 joint defendants, 23, 24, 26 surviving partner, 24 surety, 25, 26 husband and wife, 25 corporation, 25 the state, 26 United States, 27 PARTNERSHIP, set off liberally construed, 13, 22, 23, 24 after dissolution, 42, 52 claim against partner, 52, 53 PAYMENT, not a counter-claim, 2, 22 PENALTY, for usury when set up, 38 PERSONAL INJURIES, cannot be set up one against another, 28 PHYSICIAN, want of skill, 31, 54 malpractice, 55 PLEADING, cannot contain answer and counter-claim, 7 of counter-claim, 8, 14-17, 34, 35 governed by lex fvri, 14 construction of, 16 ad damnum '\a.co\x-a.\&x-c\&va\, 17 verification of, 17 waiver of informality, 18 must show defendant's ownership, 34 when demand was due, 34 penalty for usury, 38 several counter-claims, 84 PRINCIPAL AND AGENT, counter-claim between, 10, 23, 35 surety, 25, 26, 55 waiver of tort of agent, 33, 58 money collected, 35 goods sold, 35 INDEX 119 PROMISSORY NOTE, fraud in inception, 8 representation of title, 51 value, 5 ' quality, 5^ pleading on, 34, 5 2 set oil by bank, 37 for goods sold, 45, 51 breach of covenant, S i secured note, 51 set off for, in trover, 52 assignee of, 59 to executor, 81 PROVISIONAL REMEDIES, upon a counter-claim, 78 PUBLIC OFFICER, counter-claim against, 21, 27 QUALITY, breach of warranty, 58 QUIET ENJOYMENT, breach of vifarranty of, 58 R. REALTY, counter-claim in action on, 17 30, 53 breach of covenants as to, 51, 54 ejectment, 53 waste, S3 equitable title, 53 specific performance, 53 covenants referring to, 53 RECOUPMENT, at common law, 4 did not imply right of action, 4 nor authorize judgment, 4 arose from transaction, 4 misrepresentation in sale, 4 defective work, 5 negligence, 6 in action for occupation, 6 extended by code, 7 included in counter-claim, 7, 28 REPLY, 90- 99 when required, 90 cannot contain counter-claim, 91 aid defective pleading, ^a 99 99 120 INDEX must be definite, 92 consistent, 92 necessary in divorce, 43, 93 form of, 93 waiver of, 94 failure to reply, 95 to new matter, 96 when necessary, 98 to statute of limitations, several avoidances, demurrer to, 100 REPRESENTATIONS, false, .when counter-claimed, 44 as to value, r i S. SATISFACTION, plea of is not counter-claim, 9 SEDUCTION, assignability of claim for, 64 SERVICES, set off in action for, 31, 54, 55 of physician or attorney, 54 workmen, 54 negligence in, 54 contract of employment, 54 for malpractice, 55 SET OFF, at common law, 3 not for unliquidated damages, 4 was a money demand, 4 included in counter-claim, 7 SEVERAL COUNTER-CLAIMS, 82, 84 SEVERAL AVOIDANCES, 88 SEVERANCE, of action, 86, 87 SLANDER, cannot be set up against assault, 57 SPECIFIC DELIVERY, counter-claim in action for, 45 SPECIFIC PERFORMANCE, counter-claim may de- mand, 53 STATE, counter-claim against, 26 STATUTE OF FRAUDS, set off barred by, 22 STATUTE OF LIMITATIONS, 17 reply to, 99 SUBJECT OF ACTION, 29, 30, 31 what is 29, 30 property or violated right, 30 lNOEX> 121 Subject of Action:— Continued. ejectment, 3° trade mark, 30 fraudulent representations, 30, 31 services, 31 negligence, 31 conversion. 31, 32 defective work, 31 diversion of stream, 32 SUMMARY PROCEEDINGS, 47 no set off on contract. 47 for improvements. 47 SURETY, counter-claim as to, 25, 26, 55 cannot set up claim: due principal. 55 and co-surety. 55 SURVIVING PARTNER, set. off against. 24 X. TAXES, counter-claim against. 21 not defeated- by set, off. 55 claim against town cannot be set off. 55 TORT, when counter-claim in. 32, 41, 56 waiver of. 33, 57, 58 must. arise from cause of action. 5.6 independent tort cannot be. 56 not assignable. 64 TRADE-MARK, when "subject of action," 30 TRANSACTION, recoupment-arising, in 4 " set forth in complaint " 28 does not include assault. 29 nor libel. 28 refers to subject of action, 28 trespasses. 29 property or violated right, 29 ejectment. 30 trade-mark. 30 torts. 56 TRANSFER, see Assignment of Claim, Action on Assigned Claim, TRESPASSES, counter-claim in. 28, . 29, 57 must arise from transaction. 57 122 INDEX TROVER, for note set off in, 52 TRUSTEE, counter-claim by, 59, 73 V. UNITED STATES, counter-claim against, 27 UNLIQUIDATED DAMAGES, counter-claim embraces, 7 set off did not, 4 USURY, is "new matter," 2 not a counter-claim, 9,21, 22 penalty for when set up, 38 in foreclosure, 49 V. VERIFICATION, of counter-claim, 17, 18 dilatory plea, go VIOLATED RIGHT, when counter-claimed, 30 TV. WAIVER, of counter-claim, ii when implied, ir, 13 of insufficient pleading, 18 tort, 33, 57, 58 reply, 94 WAREHOUSE-MAN, negligence of, 50 WARRANTY, of quality in chattel action, 39, 58 sale, by surety, 55 goods sold, 58 WASTE, when cannot be counter-claimed, 13 set up only in foro ret, 53