And in an action by several plaintiffs a defendant may set up as a defense that one only of the plaintiffs named is the real party in interest, and as to that one set up a counter-claim (Cowles v. Cowles, 9 How. 361). In an action against a surety, he cannot avail himself of a claim in favor of his principal against the plaintiff by way of counter-claim (La Farge v. Halsey, 4 Abb. 397; contra, Newell v. Salmons, 22 Barb. 647); unless perhaps where the principal is insolvent (East River B'k v. Rogers, 7 Bosw. 493); and in an action by an executor on a cause of action which arose after the death of the testator, defendant cannot set off a demand against the testator, even though it existed at the time of his death (Merritt v. Seuman, 6 Barb. 330).

a. The counter-claim must, inter alia, be an existing claim in favor of the defendant at the commencement of the action. (Heidenheimer v. Wilson, 31 Barb. 636); and this must appear on the face of the answer, or the answer will be subject to demurrer (Rice v. O' Conner, 10 Abb. 362). Thus where the defense setting up the counterclaim commenced with the allegation that "plaintiff is indebted to defendants," and concluded "that said sum is now due defendants from plaintiff," on demurrer it was held insufficient for not alleging that the indebtedness existed "before and at the time of the commencement of the action" (id.) The allegations of a pleading refer to the time it is verified or served (see in note to section 159, post); and thus where the alleged counter-claim is a note made by the plaintiff payable to a third person and indorsed to the defendant, the answer must allege the indorsement to have been made prior to the commencement of the action (Van Valen v. Lapham, 5 Duer, 689; 13 How. 240; Chambers v. Lewis, 11 Abb. 213; 2 Hilton, 591; Rice v. O'Conner, 10 Abb. 362). Such prior indorsement is not sufficiently alleged by stating such note to be a counter-claim and cause of action existing against the plaintiff at and before the commencement of the action (id). And if a defendant at one time had a claim against the plaintiff (the subject of a counter-claim), and before the commencement of the action he has parted with it, he cannot avail himself of such claim as a counter-claim (Belknap v. McIntyre, 2 Abb. 366; but see Robinson v. Hortes, 20 N. Y. 84).

b. Counter-claim in an action on contract.-A demand [legal or equitable] on contract, on which the defendant at the time of the commencement of the action could have maintained an action against the plaintiff, is a counter claim (see Gleason v. Moer, 2 Duer, 642; Spencer v. Babcock, 22 Barb. 335; Weeks v. Pryor, 27 id. 81; Kingston B’k v. Gay, 19 id. 461; Nichols V. Boerum, 6 Abb. 290; Lemon v. Trull, 13 How. 248; 16 id. 576, note; Kneidler v. Sternberg, 10 id. 72; Silliman v. Eddy, 8 id. 123; Roscoe v. Maison, 7 id. 123; Williams v. Upton, 8 id. 205; Lignot v. Redding, 4 E. D. Smith, 285). A bank having discounted a customer's note, may on such note being protested, and on its holding such note, set off such note against the customer's deposit (Robinson v. Howes, 20 N. Y. 84). A demand assigned to the defendant before the commencement of the action may be set off, though he has not actually paid for it, but only agreed to pay (Exerit v. Strong, 5 Hill, 163).

e. Statute bar to counter-claim.—The statute of limitation is not a bar to a set-off or counter-claim, unless the period of limitation has expired before the action is brought (Walker v. Clements, 9 Eng. L. & Eq. R. 332; 15 Q. B. 1046; and see Van Allen v. Schermerhorn, 14 How. 287).

d. Judgment on a counter-claim.—Where the defendant establishes a counter-claim exceeding the amount established as due the plaintiff, the court can award the defendant judgment for the difference (Ogden v. Coddington, 2 E. D. Smith, 317). See § 246.

e. Set-off. The provision in the revised statutes, precluding a party from any right of action on a claim which he might have made the basis of a claim of set-off, extends only to such rights of action as were the subjects of set-off under the revised statutes (Welch v. Hazelton, 14 How. 99). Set-off implies a cross-demand, and payment cannot be given in evidence under

that plea (Cooper v. Morecraft, 1 Horn & Hurl. 105). An answer of set-off must allege not only that plaintiff was indebted, but that he still is indebted (Dendy v. Powell, 3 M. & W. 442).

a. Counter-claim in action by assignee.-In an action by the assignee of a claim, a demand existing prior to the assignment in favor of the defendant and against the assignor, is unavailable as a counter-claim (Dillaye v. Niles, 4 Abb. 253; Ferreira v. Depew, id. 131 ; Davidson v. Remington, 12 How. 310; Vande de Sande v. Hall, 13 id. 458; Spencer v. Babcock, 22 Barb. 327; Duncan v. Stanton, 30 id. 536; Tyler v. Willis, 33 id. 332 ; Heidenheimer v. Wilson, 31 id. 636; and see Crosbie v. Leary, 6 Bosw. 312). Such a demand, set up as a defense constituting a counter-claim, needs no reply, but may be demurred to (id.) Such a demand, although not available as a counter-claim, is a good defense as a set-off (Ferreira v. Depew, supra: Duncan v. Stanton, 30 Barb. 536; Roberts v. White, 2 Rob. 422). In an action by an assignee of a demand for engraving plates, the defendant by his answer, denied the allegations of the complaint, and as a further defense alleged that by a contract between him and the plaintiff's assignor, the plates were to be furnished by a specified time, and that the assignor made default, whereby the defendant sustained damages to the amount of the plaintiff's claim, and which he asked to have set off,-held, that this new matter if proved would have been sufficient to bar the plaintiff's claim, but that it did not constitute a counter-claim (Vasseur v. Livingston, 13 N. Y. 252). So in an action on a promissory note, indorsee against maker, the note having been indorsed to the plaintiff after it became due, the defendant may set off (but not counter-claim) a demand existing in his favor, and against the plaintiff's indorser before the indorsement of the note to the plaintiff (Wolfe 13 How. 84).

V.

b. In an action by an assignee of a chose in action to entitle a defendant to avail himself of a demand against the plaintiff's assignor (as a set-off) he must show that such demand existed in his favor prior to his having notice of the assignment to the plaintiff (Solomon v. Holt, 3 E. D. Smith, 139); and semble such demand must be both due and payable before notice of such assignment (id.; but see Filkin v. Ferris, 18 Barb. 582; Wells v. Stewart, 3 Barb. 40; Smith v. Brinkerhoff, 8 Barb. 519). Query-might a demand which accrued to the defendant after the assignment to the plaintiff, but before notice thereof to the defendant, be used as a counter-claim (Solomon v. Holt, supra). In Martine v. Willis (2 E. D. Smith, 524), an action by an assignee,—it was held that notes of the plaintiff's assignor not due and not in the possession of the defendant at the time of the assignment, but subsequently indorsed to him, could not be set off. The same was held in Van Valen v. Lapham, 5 Duer, 689; 13 How. 240; and see United States Trust Company v. Harris, 2 Bosw. 76; Butterworth v. Fox, 15 How 545; Martin v. Kunzmüller, 37 N. Y. 396. c. Building society.-A stockholder in a building company formed under laws of 1851, ch. 122, who has made advances for the company, may, when called on to respond for his statutory liability, set off such advances (Remington v. King, 11 Abb. 278).

d. Landlord and tenant.—In an action to recover possession of premises for nonpayment of rent reserved (2 R. S. 505, § 30), the tenant may show a partial eviction by way of counter-claim (Blair v. Claxton, 18 N. Y. 529). In an action by a lessor for the rent reserved, the defendant may recoup damages sustained by a breach of an implied covenant for quiet enjoyment (Mayor of N. Y. v. Mabie, 13 N. Y. 151; Harger v. Edmonds, 4 Barb. 256; McCullogh v. Cox, 6 Barb. 386). But semble not for a mere trespass (id.; Drake v. Cockroft, 4 E. D. Smith, 34; Edgerton v. Page, 20 N. Y. 281; and see Mc Kensie v. Farrell, 4 Bosw. 193). A landlord suing as assignee of a lease, for rent accruing subsequent to the assignment to him, is not liable to a counter-claim in respect of a demand in favor of the tenant, which arose and was existing prior to the assignment to the plaintiff (Peckham v. Leary, 6 Duer, 494). Semble, in an action for rent, the tenant may recoup or counter-claim the damages sustained

by an unlawful eviction, subsequent the accrual due of such rent (La Farge v. Halsey, 1 Bosw. 171; 4 Abb. 397).

a. In an action by lessors on a bond to secure rent, defendants cannot set up as a counter-claim a claim against plaintiffs for improperly removing from the demised premises the tenant's fixtures. The lease containing no provisions as to such fixtures (Mayor of N. Y. v. Parker Vein Steamship Co. 12 Abb. 300; 21 How. 289; see Benkard v. Babcock, 2 Rob. 176; Walker v. Gilbert, id. 214). In an action to annul a lease for fraud, a counter-claim for rent of the demised premises may be interposed (Wood v. Mayor of N. Y. 3 Abb. N. S. 467). b. Mortgagor and mortgagee.-A purchaser of land subject to a mortgage cannot, in an action to foreclose such mortgage, set up as a counter-claim or recoupment, a fraud practised upon him by the mortgagor after the mortgage was given (Leed v. Latson, 15 Barb. 9). As to a counter-claim in foreclosure, see Nat. Pro. Ins. Co. v. McKay, 21 N. Y. 191; Fowler v. Poling, 2 Barb. 301.

c. In an action to foreclose a mortgage, a defendant not personally liable for any deficiency, cannot set up a counter-claim arising out of matters unconnected with the subject of the action (Agate v. King, 17 Abb. 159).

d. Premium insurance note.—The maker of a promissory note given to an insurance company for premiums, may set off against such note, even if in the hands of a receiver, debts due him from the corporation (Berry v. Brett, 6 Bosw. 627; see Lawrence v. Nelson, 21 N. Y. 158).

e. Goods sold.—In (Lemon v. Trull, 13 How. 248; 16 How. 576, note) an action for goods sold, an answer setting up a breach of warranty as to the quality of the goods, and claiming to recoup to that extent, was held to constitute a counter-claim (see Warren v. Van Pelt, 4 E. D. Smith, 202). In a a subsequent case, an action on an promissory note, the defendant answered that the note was made by him, and delivered to plaintiff in payment for goods sold him [defendant] by plaintiff, with a warranty of their quality, that the goods were not of the quality warranted, and claimed damages for the breach of such warranty,-held that such a defense was not a counter-claim (Nichols v. Boerum, 6 Abb. 291; Berdell v. Johnson, 18 Barb. 559.)

f. An accommodation indorser of a bill or note given for the price of goods sold, cannot set up as a defense or counter-claim a breach of a warranty on the sale of the goods (Gillespie v. Torrance, 7 Abb. 462).

g. Duplicity.-This section is a statutory prohibition against duplicity (Boyce v. Brown, 7 Barb. 87). But a defense is not double because it denies two allegations of the complaint, both of which are necessary to make a cause of action (Otis v. Ross, 8 How. 193). Where the answer first denied each allegation in the complaint, and then, in successive paragraphs, separately numbered, admitted in terms many averments of the complaint, plaintiff moved to strike out as false either the general denial or the admissions,―ordered that the general denial be struck out, unless the defendants withdrew the paragraphs containing the admissions (Willett v. Metrop. Ins. Co. 2 Bosw. 679). A general and a specific denial are not permitted to the same part of a complaint; but an answer may specifically deny one part and generally deny the remainder (Blake v. Eldred, 18 How. 240; and a defendant may make one defense to one part of a cause of action, and another defense to another part of the same cause of action (Longworthy v. Knapp, 4 Abb. 115).

h. Each defense must be complete within itself.-The separate defenses, separately stated, take the place of separate pleas (Cobb v. Frazee, 4 How. 413). Each defense or counter-claim is to be regarded as if it stood alone (Swift v. Kingsley, 24 Barb. 541; Hamer v. McFarlin, 4 Denio, 511; Baldwin v. U. S. Tel. Co. 6 Abb. N. S. 406; 54 Barb. 506; Ayres v. Covill, 18 Barb. 264; Simmons v. Fairchild, 42 Barb. 404); and was the sole defense (Tremlow v. Áskey, 1 Horn & Hurl. 173; Fischer v. Aide, id. 168), and should be complete in itself, without reference to others (Spencer v. Babcock, 22 Barb. 335; Bridge v. Payson, 5 Sand. 210; Sinclair v. Fitch, 3 E. D. Smith, 389; Loosey v. Orser, 4 Bosw. 392; Xenia B'k v. Lee, 2 Bosw. 694; 7 Abb. 387; Benedict v. Seymour, 6 How. 298), and be an answer to the cause of action to which it is

addressed (Brown v. Ryckman, 12 How. 314; Kneedler v. Sternberg, 4 Sand. 210). A defense cannot be made out nor defeated by connecting two or more separate defenses together (Spencer v. Babcock, supra, Ayrault v. Chamberlain, 33 Barb. 237; Ritchie v. Garrison, 10 Abb. 246, and note; Landau v. Levy, 1 Abb. 376; Sinclair v. Fitch, 3 E. D. Smith, 677; and see note to § 168, post). Semble, a defendant, to avoid repetition, may aver once certain facts alike applicable to several defenses, and, having averred them in one defense or by way of introduction to all, may refer to them in any other defense, or subsequently, intelligibly and distinctly, so as by reference to clearly include them in each (Xenia Branch Bank v. Lee, 7 Abb. 387; 2 Bosw. 694; and see Ayres v. Covill, 18 Barb 261; Sinclair v. Fitch, 3 E. D. Smith, 677). Where there are several defenses, an admission implied by not denying in one defense is not available to the plaintiff in respect of another defense not containing any such admission, in the same answer (Swift v. Kingsley, 24 Barb. 541; Ayres v. Covill, 18 id. 264). Where in one defense the note sued on is described or mentioned a reference in a subsequent defense to the said note sufficiently points out the note in suit (Williams v. Richmond, 9 How. 523).

a. Several defenses, how stated.-Each defense must be separately stated and plainly numbered (Rule 19). No formal commencement or conclusion is required to mark each separate defense (Bridge v. Payson, 5 Sand. 210; Lippincott v. Goodwin, 8 How. 242). To commence each separate defense with the words, "And the defendant further says," was held not to be sufficient (id.); but to commence with the words, " And for a further defense," would be sufficient (Benedict v. Seymour, 6 How. 298).

b. What defenses may be pleaded together.—A general denial and infancy (Mott v. Burnett, 2 E. D. Smith, 52); a general denial and release (Kellogg v. Baker, 15 Abb. 287). In an action for an assault: a general denial; son assault demesne; and molliter manus (Lansing v. Parker, 9 How. 288). To an action for false representations: a general denial; and that the alleged representations were true (Otis v. Ross, 8 id. 193). To an action for slander; a denial of speaking the words; and that the alleged words were true (Buhler v. Wentworth, 17 Barb. 649; 9 How. 282; Hollenbeck v. Clow, 9 How 289; Ormsby v. Douglass, 5 Duer, 665). To an action for personal property (replevin); a denial of the taking; and a justification of the taking (Huckley v. Ognum, 10 How. 44; and see Hellebrant v. Booth, 7 Texas, 499); a denial of any knowledge or information sufficient to form a belief as to the plaintiff's title; and a claim of lien on the property in suit (Townsend v. Platt, 3 Abb. 327). To an action for a malicious prosecution, a general denial and facts to constitute a probable cause (Radde v. Ruckgaber, 3 Duer, 684). A denial of the amount claimed, an admission of a certain amount due, and a tender to that amount, held to be but one defense (Spencer v. Tooker, 12 Abb. 353; 21 How. 333); there is no provision in the code which allows defenses to be struck out on the specific ground of inconsistency as such (Ostrom v. Bixby, 9 How. 59; Hollenbeck v. Clono, id. 290; Smith v. Wells, 20 How. 158). And "when the court assumes to compel the defendant to elect between inconsistent defenses, it must do so on the ground that, from the very nature of the case, it is impossible that the defendant can have two such defenses" (id.) Defenses which were not inconsistent under the former, should not be considered inconsistent under the present system of pleading (Lansing v. Parker, 9 How. 288). The defendant cannot be required, as a condition of answering new matter, to make an admission which shall preclude him from denying the allegations of the complaint on the trial (Ketcham v. Zerega, 1 E. D. Smith, 553; Brown v. Ryckman, 12 How. 317; Hollenbeck v. Clow, 9 id. 290; Stiles v. Comstock, 9 How. 48; Lansing v. Parker, 9 id. 288; Hackley v. Ognum, 10 id. 44; Mott v. Burnett, 2 E. D. Smith, 52; 1 Code Rep. 134). "He should never be required to elect between a denial of a material allegation of a complaint and new matter constituting a defense" (Hollenbeck v. Clow, supra). The distinction between pleas in abatement and in bar is abolished, and therefore a defense of defect of parties may be united with a defense on the

merits (Mayhew v. Robinson, 10 How. 164; Sweet v. Tuttle, 14 N. Y. 465; Bridge v. Payson, 5 Sand. 210; Gardner v. Clark, 21 N. Y. 399; but see 4 Rob. 620-621).

§ 151. Demurrer and answer.

The defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue.

a. Where a defendant demurs and answers to the same cause of action, or to the whole of a complaint, the plaintiff cannot treat the demurrer as a nullity, nor move for judgment; but he should move to strike out the answer and demurrer, or that the defendant elect by which he will abide (Spellman v. Weider, 5 How. 5; Howard v. Michigan Southern R. R. Co. id. 206; and see Clarkson v. Mitchell, 3 E. D. Smith, 269; Bolton v. Gardner, 3 Paige, 273; Clarke v. Phelps, 6 Johns. Ch. 214; Samuel v. Atkinson, 11 Ir. Law. R. 50; and note to section 143, p. 256, e.)

§ 152. (Am'd 1851.) fenses.

Sham and irrelevant answers and de

Sham and irrevelant answers and defenses may be stricken out on motion, and upon such terms as the court may in their discretion impose.

b. This section "confers no new power, but is simply declaratory of a power the courts before possessed" (Manufacturing B'k of Rochester v. Hitchcock, 14 How. 406).

c Sham answer.-There is a distinction between a false answer and a frivolous answer (Hecker v. Mitchell, 5 Abb. 455; Hull v. Smith, 8 How. 150; Davis v. Potter, 4 How. 155). The essential element of a sham answer is its falsity (Nichols v. Jones, 6 How. 257; Ostram v. Bixby, 9 id. 57; Walker v. Hewitt, 11 How. 398; Hull v. Smith, 8 id 150). It may be good in form (id.) A sham answer is one that is false (Leach v. Boynton, 3 Abb. 1; Littlejohn v. Greely, 22 How. 345). The words sham and false, applied to such an answer are synonymous (The People v. McComber, 18 N. Y. 320; McCarty v. O'Donnell, 7 Rob. 431). To be sham it must be false in the sense of being a mere pretense set up in bad faith and without color of fact (Kiefer v. Thomass, 6 Abb. N. S. 42; Hadden v. N. Y. Silk Manufacturing Co. 1 Daly, 388). It is not sham because the plaintiff has a strong prima facie case (Morey v. Safe Depo. Co. 7 Abb. N. S. 199). Where from circumstances occurring after the answer has been served it becomes false, it may be struck out (Clark v. Clark, 7 Rob. 276). An answer or defense, although verified and consisting of a denial only, if sham or false, will be struck out (The People v. Mc Comber, 18 N. Y. 316; 15 How. 186; Corbett v. Eno, 13 Abb. 65; Elizabethport Manufac. Co. v. Campbell, 13 Abb. 86; Lawrence v. Derby, 24 How. 134; Butterfield v. McComber, 22 How. 150; Struver v. Ocean Ins. Co. 2 Hilton, 475; 9 Abb. 23; Lunt v. Seaman's Savings B'k, 37 Barb. 129; 23 How. 258; Butterfield v. MeComber, 22 How. 150; Conklin v. Vandervoort, 7 How. 483; Mier v. Cartledge, 4 How. 115). Where an answer states a sufficient defense on the knowledge of the defendant, it would be unsafe to strike it out as sham (Miller v. Hughes, 21 How. 442; 13 Abb. 93, note). Where a defendant applies on notice for leave to put in an amended answer and serves with his motion papers a copy of his proposed answer as amended, no objection being made that the proposed answer was sham or false, leave was given him to serve such amended answer,-held that the plaintiff could not afterward have it struck out as false (Mussina v. Stilman, 13 Abb. 93). In an action against the acceptor of a draft, an answer that the name subscribed to the draft was not the true name of the subscriber, held sham (Claflin v.