JBeax>t, J.:
The defendant herein commenced an action against the firm of Gardner & Inslee, of which the plaintiff Inslee is the survivor, claiming a sum to be due' arising out of shipments of butter and wool to them. They answered, alleging advances upon the property, the sale thereof, and that the proceeds did not amount to enough to pay the advances and expenses. They did not, however, *232present the excess in their favor either as a set-off or counter-claim: They also commenced this action, which is founded upon the transactions mentioned, claiming the excess referred to, to be due to them. It does not appear which of these actions was first commenced. The referee, in the defendant’s action, reported in favor of the plaintiffs herein, finding, among other things, that Gardner & Inslee duly accounted to and with the defendant for the wool and butter and the proceeds thereof, and all of the same. The defendant herein set up the judgment founded upon these findings of the referee, by supplement to his original answer, in which the pendency of his action was interposed as a defense. There can be no doubt that both actions related to and were predicated of the same transactions. There can be no doubt either that the plaintiff herein and his then existing partner could have litigated the claim herein presented in the defendant’s action, and taken judgment for it, if it were allowed, because it was the subject of a counter-claim. They did not adopt that course, and the question presented on this appeal is, whether or not the claim is barred by the omission to do it. It seems to be settled in this State by authority. A defendant is not bound in his answer to set up a demand which, from its nature, is a proper subject of a counter-claim. He' may elect to enforce its recovery in a separate action. (Halsey et al. v. Carter, 1 Duer, 661.) A party having a demand against another may institute an action thereupon, although at the same time an action is pending, brought against him by his debtor, wherein he might set up his demand as a counter-claim. (Lignot et al. v. Redding, 4 E. D. Smith, 285.) Justice Imgbaham: “We do not think a party having a claim against another is bound to await the tedious motion of such debtor, if he sees fit to commence a suit and then delay its progress so as to prevent the real creditor from obtaining what is due to him.” There is nothing in the Code (§§ 149,150) requiring the defendant to avail himself of his counter-claim or be precluded from maintaining an action. The preclusion must be confined to the cases specified in the Devised Statutes. (2 R. S., 236, § 57.) Welch v. Hazleton (14 How. Pr., 97) and these cases, are those commenced in Justices’ Courts: Douglas v. Hoag (1 Johns, 283, per Spencer, J.); Lord v. Ostrander (43 Barb., 339). The cases of Halsey v. Carter and Welch v. Hazleton (supra), are approved in *233Gillespie v. Torrance (25 N. Y., 310). It is not necessary to consider what would be the legal result if the plaintiff and his partner,had pleaded their counter-claim in the defendants’ action, because it was not done. They answered by denying the defendants’ cause of action and succeeded. For these reasons the judgment •must be affirmed, with costs.
Davis, P. J., and Daniels, J., concurred.
Judgment affirmed, with costs.