20 Abb. N. Cas. 293 | City of New York Municipal Court | 1887
This case may be viewed in two as.pccts—one legal, the other equitable. At law, if A makes promissory notes for the accommodation of B, the payee, and
A would be entitled to this relief if he had commenced* a suit in equity for that purpose; and the Code of Civil Procedure (§ 507), in effect provides that he may obtain such relief by means of an equitable defense. The judgment for the plaintiff may provide that the defendant be allowed to pay the amount of any recovery in discharge of his liability (Hannay v. Pell, 3 E. D. Smith, 432). The present action resembles very much the case last cited, and the relief claimed may' be granted (B being insolvent), though the liability of A has not as yet matured (Lindsay v. Jackson, 2 Paige, 581). In the present instance part of the liability has matured and is in judgment, as in Hannay v. Pell (supra). The plaintiff is an assignee of B for the benefit of creditors, and this equitable defense is equally available against him (Smith v. Felton, 45 N. Y. 419; Rothschild v. Mack, 3 N. Y. State Pep. 471).
The Code provision in regard to equitable defenses applies to the city court as fully as to the supreme court of the State {Code Civ. Pro. § 3347, snbd. 4). It follows that the defendant has pleaded a good equitable defense, and that the demurrer thereto must be overruled, with costs.