Baldwin v. Berrian , 53 How. Pr. 81 ( 1877 )

Van Brunt, J.

The demurrer to that part of the answer which seeks to set up, as a counter-claim to the cause of action alleged in the complaint, causes of action arising out of transactions between the plaintiff and the firm of Berrian & Briggs must be sustained for the reasons stated in the case of Baldwin agt. Briggs (Ante, p. 80). The defendant woul'd undoubtedly, as matter of defense, have the right to show. that any portion of the whole of the consideration of the note in suit had been made up, upon a balancing of the account between the plaintiffs and the firm of Berrian & Briggs, of his share of an alleged indebtedness from Berrian & Briggs to the plaintiffs, which indebtedness consisted of illegal exactions of interest duly specified, and in payment of which the note in suit was given. The answer, however, wholly fails to allege any balancing of accounts or the separation of the defendant’s and Briggs’ indebtedness to the plaintiff, or that the same was given in payment therefor as far as that part of the answer demurred to is concerned. The demurrer is, therefore, sustained, with leave to defendant to amend upon payment of costs.