Atwater v. Spader ( 1887 )

Dykman, J.

This is an action upon an undertaking executed by Margaret G-. Spader and J. Vanderbilt Spader fir the procurement of an order of arrest in a civil actim brought by John A. McOaul against William H.G-ale, for tie recovery of money received by him in a fiduciary capaciy.

The order of arrest was obtained, but when the caise came on for trial the complaint was dismissed and the defendant had judgment for the costs of the action.

The defense to the action is this: Prior to the institition of the action of McOaul against Gale, Gale was indebted to the defendant, J. Vanderbilt Spader for money loaied to him individually, and also for money loaned to hin and Louis Spader.

The claim for money loaned to Gale and Spatter was assigned to the defendant Margaret G. Spader, and die sets it up as a counter-claim in this action. The deferlant, J. Vanderbilt Spader sets up the individual indebtedness of Gale as a counter-claim, and there is more than sufficient due upon each of these claims to extinguish any amount the plaintiff can claim in this action. All these facture undisputed, and the sole question involved has refernce to the applicability of the counter-claim to the extingúshment of the plaintiff’s claim upon the undertaking.

The undertaking upon which this action is brought is joint and several, and a separate judgment might be recovered in favor of the plaintiff against either one of the defendants, and the counter-claim interposed represents a cause of action against the person whom the plaintiff represents existing at the time of the commencement of this action.

The requirements for the allowance of a counter-claim are prescribed by section 501 of the Code of Civil Procedure, and they are all satisfied and fulfilled by the facts of this case. The allowance of the counter-claim against the assigneee of the undertaking was justified by section 502 of the Code, and justice has been obtained.

. The judgment should he affimed with costs.