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divers horses and colts, furnished and provided by said James Aikin for said plaintiff, at his like request and instance. Also in the sum of $3,000, for money lent to, paid, laid out and expended for said plaintiff by said James Aikin, at his like request, which several sums or any part thereof have never been paid by said plaintiff, and he is now indebted in said several sums to said defendants, as such executors as aforesaid, and said defendants will set-off the same against any demand which the plaintiff may establish in this cause, and claim a judgment for the balance in their favor as such executors.

J. TAYLOR,

Defendants' Attorney.

(No. 58.)

Example of a defence, improperly pleaded as a set-off or counter-claim, which is not such, but is merely defensive matter.1

SUPREME COURT.

Edward Van Ness

agt.

Charles M. Tallman.

The defendant in the above entitled action, in answering the complaint of the plaintiff therein, 2

First. Denies that he took into his possession all the property and effects conveyed by the said assignment in said

1 This is part of the answer to Complaint No. 37, Part III., ante, p. 178. The action, it will be observed, is by an assignee, the set-off existing against the assignor, and is, therefore, not strictly a counter

* In the original the denial is stated, "the plaintiff therein says he denies." This has been repeatedly held to be defective. (See note, ante, p. 535.) I have, therefore, omitted the two words in italics.

complaint mentioned, or that he used or disposed of the same. [Stating various denials and other matter.]

Second. The said defendant, further answering, avers, that the said Cornelia Van Ness, in said complaint mentioned, was, at the time of the alleged transfer of said notes in said complaint mentioned, and still is, indebted to this defendant, in the sum of $350, for the work, labor and services done, performed and rendered by this defendant, for the said Cornelia Van Ness, since the 1st day of January, 1849, at her special request, as an attorney and counselor, and for money paid, laid out and expended by this defendant, for the benefit of the said Cornelia Van Ness, and at her request, since the said 1st day of January, 1849, which sum the defendant claims to have allowed as a set-off or counter-claim against any claim or demand which may be proved by the plaintiff on the trial of this

action.

W. S. KELLY,

Defendant's Attorney.

claim. A counter-claim, which requires a reply to put it in issue, must contain, in substance, a cause of action in favor of the defendant, against the plaintiff. Thus, in an action by the assignee of a demand for engraving plates, the defendant, as one of his defences, alleged that, by the contract between him and the assignor, the plates were to be furnished by a specified time, and that the assignor made default, whereby the defendant sustained damages to an equal amount with the plaintiff's claim, and demanded judgment against the plaintiff for damages to that amount. This is a purely defensive answer, and though sufficient, if true, to defeat a recovery by the plaintiff who sues, is not a counter-claim, and requires no reply, and it must be pleaded purely as a defence. (Dillaye v. Niles, 4 Abbott, 253; Ferreira v. Depew, ibid., 131; Wolf v. E. H., 13 How., 84.) It would have been otherwise if the action had been brought before assignment, in the name of the original contracting party. This doctrine has been frequently held, and is sustained by the Court of Appeals. (Vassear v. Livingston, 3 Kernan, 248.)

(No. 59.)

Answer alleging rent due from plaintiff to defendant by way of set-off or counter-claim in an action on contract.

SUPREME COURT.

Thomas White
agt.

Daniel Lucey.

The defendant answers the plaintiff's complaint, and alleges, by way of counter-claim, the following facts:

That the plaintiff is indebted to the defendant in the sum of $90.44, for the rent, use and occupation of the premises and store of said plaintiff, situated in Front-street, in rear of No. 93, 95 River-street, in the city of Troy, which premises, the defendant alleges, the said plaintiff leased of him, the said defendant, at and for the yearly rent of $155, payable monthly, and each month in advance, on or about the 12th day of May, 1856; and that at the expiration of the first year the said plaintiff, to wit, on or about the 12th May, 1857, took and leased said premises for another year, at the same rent, payable monthly, in advance, and has not paid said rent, or any part thereof, for the use and occupation of said premises, from said 12th day of May, 1857, up to the present time, and is indebted to said defendant for such rent, to wit, for seven months, in the said sum of $90.44, which defendant claims should be set-off against the said demand of the plaintiff against him, and he demands judgment for such balance as may be found his due.

S. & V. S.,

Defendant's Attorneys.

(No. 60.)

That the plaintiff has not performed his covenants in a lease of the demised premises, to the defendant's damage, which he claims by way of counter-claim.

SUPERIOR COURT-CITY OF NEW-YORK.

George D. Phelps
agt.

Gottlieb Kiesele.

The defendant, for answer to the plaintiff's complaint, by way of counter-claim, alleges and states:

That he has well and faithfully kept and. duly performed all the conditions and covenants by him entered into, in said indenture of lease contained ; but that the plaintiff in this suit has not kept or performed the covenants and agreements by him entered into or assumed by said indenture of lease, in this, to wit, that the plaintiff herein, on the 1st day of December, 1851, digged, tore up and excavated the said street, in which said demised premises are situated, from the corner of Liberty and Greenwich streets, in the city of New-York, up to and including said demised premises, and digged into the cellar and vault of said demised premises, and broke down the same, and rendered it unfit for defendant's use and occupation; and otherwise obstructed said street, preventing this defendant and his family and his servants and horses and wagons from obtaining access to said premises, there by interrupting and destroying his business and compelling his customers to go elsewhere; and the said plaintiff con

1 As to pleading performance of conditions precedent, see Pleadings, 234, 492; see also note, ante, p. 442.

tinued so to obstruct said street from the 1st day of December, 1851, to the 1st day of May, 1852.

Wherefore this defendant says, that in consequence of the breach by plaintiff of the covenants and conditions in said lease, on his part to be performed, in tearing up and excavating said street, and in tearing down and breaking into defendant's cellar or vault, he has sustained damage to the amount of $2,000, for which sum he demands judgment, besides the costs of defending this action.1

1 In an action by a landlord to recover rent reserved by a lease, the tenant cannot set up as a counter-claim a mere trespass by the landlord and destruction of personal property upon the demised premises. In order to give the defendant a claim for damages "connected with the subject of the action," so as to constitute a counter-claim, there must be an interference with the possession, an eviction, total or partial, or an injury of the premises in violation of the agreement of letting. (Drake v. Cockroft, 10 How., 377.) And a late case in the New-York Common Pleas, at General Term (Edgerton v. Page, 5 Abbott), holds not only that acts on the part of the landlord disturbing his tenant in the beneficial enjoyment of the demised premises, cannot be set up in recoupment, or as a counter-claim, under the Code, unless such acts amount to an eviction, but that to constitute an eviction, and thus occasion a suspension or extinguishment of rent, the tenant must be compelled to abandon possession of either part or the whole of the demised premises. Within this principle, the statement of the counter-claim in the text would perhaps be insufficient, there being no breach of the agreement to let or lease alleged by defendant, and the counter-claim not being, therefore, a cause of action arising out of the contract. (See opinion of DALY, J., 5 Abbott, 10, 11.) A form of demurrer to this counter-claim will be found, post, No. 20, part V.

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