9 How. Pr. 356 | N.Y. Sup. Ct. | 1854
The answer of the defendant may contain, 2d, “ a statement of any new matter constituting a defence or counter claim,” (Code, § 149.) The defendant, in the present case, has set forth in his answer several separate statements of new matter, constituting, under the revised statutes, set-off; and also, separate statements of new matter constituting causes of action against the plaintiff upon contract, which are not authorized by the revised statutes as set-offs. These latter statements of new matter are authorized by the second subdivision of section 150 of the Code. This section defines a counter claim. It must arise out of one of the following causes of action. The 2d cause is: ££ In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.” In the present case the action is upon a note, and the counter claims are upon special contracts made by the plaintiff with the defendant, and damages are claimed for the breach of the contracts.
By section 153, when the answer contains new matter constituting a counter claim, the plaintiff may reply to such new matter, denying each allegation controverted by him, and he may allege any new matter, not inconsistent with the complaint, constituting a defence to such new matter in the answer. It
I can see no objection, under the Code, to the plaintiff’s meeting the defendant’s set-off in this manner. It may be conceded that the statutes, prior to the Code, did not authorize the plaintiff to reply a set-off to the plea of set-off by the defendant; but it does not follow that he may not do so now.
The present Code, touching pleadings in courts of record, does not use the term set-off, nor did the Code of 1848. The Code of 1848 used the term defence only; and I have no doubt, as the Code then stood, that a defendant might have availed himself of a set-off, and stated it as new matter, constituting a defence. By the amendments of 1849, the word “set-off” was inserted in section 149 after the word defence, probably to obviate any doubt. (See Ranney agt. Smith, 6 How Pr. R. 420; Willis agt. Taggard, 6 How. Pr. R. 433.)
■. By the amendments of 1852 the word “ set-off” was omitted, and “counter claim” inserted, by which it was intended to include set-off, recoupment, and other causes of action as defined in section 150. The. second subdivision of § 150, in connection with § 149, as we have seen, authorizes a defendant to state any other cause of action arising also on contract, and existing at the commencement of the action. Now this undoubtedly includes a set-off. He "who has a set-off has a cause of action arising on contract. The provision, however, goes much further, and includes any cause of action arising on contract.
As above stated, it was my opinion that, as the Code of 1848 stood, with the word defence only, a defendant could avail himself of a set-off, or could recoup, because, as to the former, the revised statutes authorized a set-off, and the decisions of the courts constituting law, authorized recoupment, and they were
By the present Code, (§§ 149 and 150,) the defendant is authorized to insert in his answer new matters not before allowed. He may state any cause of action arising upon contract. It is called a counter claim, and by § 153 the plaintiff may reply to such new matter, and allege any new matter constituting a defence to such new matter in the answer. Here we have the word defence again. It is clear to my mind that when the defendant in his answer sets forth a cause of action arising upon contract,—other than that which constitutes a set-off,— the plaintiff may reply any facts which would have constituted a defence, had the defendant sued the plaintiff for such cause of action; and the only serious question that can be made, is whether he may reply a set-off to the set-off stated in the answer. Assuming that he was not, by statute, prior to the Code, permitted to do so, still I think that the Code now authorizes it. If the plaintiff, as in this case, brings his action upon a note, and the defendant states a cause of action constituting a set-off, and the plaintiff has another cause of action which would constitute a set-off to the defendant’s claim, had the defendant brought an action upon the claim he has set-off, I think the plaintiff may reply his other cause of action as a set-off and defence to the defendant’s set-off; and that in contemplation of section 153, it will constitute a defence to the new matter in the answer.
It may not be improper to add that courts of equity possessed and exercised jurisdiction touching set-offs, prior to any statutes upon the subject, and that although since the statutes relating to set-offs they have generally followed the statutes, still they have not been limited strictly by the provisions of the statutes as courts of law were; but they often gave relief in cases not provided for by the statutes. They had rules of
It is declared by- the" Code that a defendant may set forth by answer as many defences and counter claims as he may have,, whether they be subh as’ háve’ been heretofore-denominated legal- or1'equitable, or both, § 150. I suppose that we are to take jurisdiction of equitable set-offs as ■ well as legal, or such as the revised statute specifies, and that we are to take notice of equitable as well as legal defences to set-offs pleaded by a defendant. The motion must’be denied, with costs.