Schubart v. Harteau , 1861 N.Y. App. Div. LEXIS 94 ( 1861 )

By the Court, Ingraham, J.

A counter-claim, under the code, may be either for liquidated or unliquidated damages, if they arise upon contract.

Where a claim is prosecuted by a plaintiff against a defendant who has a claim against the plaintiff and others, on contract, the defendant may set up the same as a counterclaim, and recover any balance against the plaintiff, over the plaintiff’s claim; unless the plaintiff replies to the counterclaim that there are other persons liable with him, as partners. (Briggs v. Briggs, 20 Barb. 477.) In such a case the counter-claim is good, so far as to he a set-off against the plaintiff’s claim to that amount.

[New York General Term, May 6, 1861.

It would seem, further, that the case does not differ from one where the party in a suit on his own note, given in payment for property delivered under a contract, makes defense that the property was not according to the contract. And in such a case the ground of defense taken by this defendant must he admissible, and if proved, available.

Judgment reversed,- and a new trial ordered; costs to abide the event.

Clerke, Gould and Ingraham, Justices.]