186 A.D. 538
N.Y. App. Div.
1919
Blackmar, J.:

The evidence amply sustained the finding that the defendant was induced by fraud to exchange with Martin, who acted as dummy for plaintiff, its property at Hоllis for the apartment upon which was the mortgage that this action is brought to foreclose. The false representation was not of vаlue only, but of facts and circumstances that were intended to and did lead the defendant to accept and rely on plaintiff’s representation of value. The trick and device whereby defendant was induced to accept the representation of value by the real owner as the advice of a disinterested expert worked a palpable and successful fraud.

The defendant, pleading the facts constituting the fraud as a defense and counterclaim, has prevailed and received a judgment canceling the mortgage of $6,000 and awarding to it the sum of $6,625 damages, with interest and costs, to be paid by the plaintiff, and the plaintiff appeals to this court therefrom. The judgment was based on findings that defend*541ant received in the exchange property worth $12,000 less than that with which he parted, and paid ‍​‌‌​​​​​‌​‌​​‌​​​‌‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​​‌​​‌‌‌‌​‍$625 commission, and that this lоss was the result of false representations made by plaintiff.

It is elementary that in the case of a contract induced by fraud, the defrauded party has the alternative of rescission or an action for damages for deceit. These remedies are inconsistent and cаnnot co-exist, as one rests upon the avoidance of the contract and the other upon its affirmance. How, then, can the contract of exchange of property be in effect annulled as to one element of it, viz., the mortgage subject to which the property was taken, and at the same time a recovery of damages be permitted? So stated, the problem seems difficult; but I think the judgment may bе affirmed. The judgment is not in effect a rescission of any portion of the contract, but the result of the application of the common-law doctrine of recoupment as applied in our system of Code pleadings.

Under the procedure at common law, if upon the sale of property the purchase price is not fully paid and the vendor brings an action to recover it, the vendee might, under the plea of the general issue, recoup, by way of deduction from plaintiff’s claim, the damages that he has suffered by the fraud or breach оf contract of the plaintiff in the transaction which forms the grounds of the action. Even if a note or bond is given for the purchase pricе, the rule obtains. (Harrington v. Stratton, 22 Pick. 510; Dushane v. Benedict, 120 U. S. 630; McAllister v. Reab, 4 Wend. 483; Whitney v. Allaire, 4 Den. 554; Van Epps v. Harrison, 5 Hill, 63; Gillespie v. Torrance, 25 N. Y. 306.) And the doctrine has been applied to an action to foreclose ‍​‌‌​​​​​‌​‌​​‌​​​‌‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​​‌​​‌‌‌‌​‍a mortgage given for the purchase рrice of land (Wilcox v. Howell, 44 N. Y. 398; Lassall v. Pati, 25 Misc. Rep. 561), even when the mortgage is one of the securities given in carrying out a contract of exchange of lands, (Fairchild v. McMahon, 139 N. Y. 290.)

The cases cited are abundant authority that a claim for damages for deceit in a sale could be recouped in an actiоn for the purchase price. A claim for recoupment was cognizable at law and differed from setoff, which was a head of equity jurisdiction. (Nichols v. Dusenbury, 2 N. Y. 283; Gillespie v. *542Torrance, supra; Vassear v. Livingston, 13 N. Y. 248.) In recoupment the claim of defendant must arise out of the transaction that constitutes plaintiff’s cause of action, and may rest in tort or contract, or be for liquidated ‍​‌‌​​​​​‌​‌​​‌​​​‌‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​​‌​​‌‌‌‌​‍or unliquidated damages. In setoff both claims must arise on contract and the damages be liquidated, аnd it is not necessary that they arise out of the same transaction.

But recoupment was by way of reduction of plaintiff’s demand and could nоt be the basis of an affirmative judgment for defendant. It could be had only when the facts justifying it constituted a cause of action in favor of defendant against plaintiff, and was admitted as a defense to avoid circuity of action.

The method of pleading recoupment as a defense under the general issue was swept away in our system of Code pleading. It was decided for the first time in Deeves & Son v. Manhattan Life Ins. Co. (195 N. Y. 324) that the defendant must plead as a counterclaim the facts formerly available as a defense by way of recoupment. A counterclaim now embraces both rеcoupment and setoff. And so the facts were properly pleaded as a counterclaim in the case under consideratiоn. The counterclaim was for deceit. But the plaintiff contends ‍​‌‌​​​​​‌​‌​​‌​​​‌‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​​‌​​‌‌‌‌​‍that a counterclaim for damages for deceit was not admissible, beсause, as the action was to foreclose a mortgage and no money judgment was asked against the defendant, the allowance of it would not tend to diminish or defeat plaintiff’s recovery, citing section 501 of the Code of Civil Procedure and Lipman v. J. A. I. Works (128 N. Y. 58).

We have seen that at common law the defense of recoupe ment was admissible in a case like the present, for the mortgage that the plaintiff seeks to foreclose is for part of the purchasprice of the property and, except as a means of paying the purchase price, had no validity. In fact, there has been a practical application of the doctrine since the adoption оf the Code system of pleading. . (See Wilcox v. Howell and Fairchild v. McMahon, supra.) The Code, as interpreted in the Deeves case, required the facts giving the right to recoupment to be pleaded as a counterclaim and not as a defense. We cannot admit that this was intended to abolish the right of recoupment unless we are prepared to place form above *543substance. If the counterclaim can to the extent of the face of the mortgage ‍​‌‌​​​​​‌​‌​​‌​​​‌‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​​‌​​‌‌‌‌​‍operate as recoupment, it does tend to diminish plaintiff’s recovery. The IÁpman case is, in this respect, to be distinguished from the case at bar, for Judge Finch there рlainly pointed out that defendant’s success on the counterclaim could have no effect whatever on the foreclosure.

But to a certain extent the doctrine in the Deeves case, that recoupment is a counterclaim and not a defense, does alter the situation, for an affirmative judgment may be entered upon a counterclaim for the amount established in excess of plaintiff’s demand. (Code Civ. Proc. § 503.) This could not be done in recoupmеnt pleaded as a defense.

I think, therefore, that the counterclaim based on deceit in the contract for the exchange оf property, out of which the mortgage arose, may be pleaded, for it tends to defeat plaintiff’s recovery and arises out of thе transaction set forth in the complaint as the foundation of plaintiff’s cause of action; that under the doctrine of recoupmеnt it may reduce plaintiff’s recovery on the mortgage, and that the defendant is entitled to judgment, under section 503 of the Code, for the excess of its damages over plaintiff’s claim. So circuity of action is avoided and the whole controversy settled in one action, and this is in accord with the spirit of the administration of the law, in that needless litigation is avoided.

The judgment should be affirmed, with costs.

Present — Jenks, P. J., Mills, Putnam, Blackmar and Kelly, J.

Judgment unanimously affirmed, with costs.