Mygatt v. Willcox.

same employment, upon the same matter, he may allow any portion of his disbursements or services to overrun six years withoat peril from the statute. The statute of limitations does not, therefore, bar plaintiff's cause of action.

Are the defendants properly joined? They insist their interests are not joint. But they were jointly interested in the settlement of their accounts, the employment was for their joint benefit. Plaintiff acted for them both, and both recognized and allowed such action on his part. However diverse or even hostile their interests might be on distribution, they necessarily harmonized in their trust capacity. Each had an equal interest in and control over the trust property, and their management and disposition of such trust estate was the subject for consideration before the surrogate. This brings the case within section 119 of the Code, "united in interest." It would be impossible to apportion such costs between these defendants. (1 Pars. on Cont., 5th ed., 14, 19.)

It is settled by the case of Willcox v. Smith (26 Barb., 316) that the defendants are personally liable to the plaintiff, and that they cannot be made liable in their representative character. (See also Bowman v. Tallman, 2 Robert, 385; 1 Wait Law and Pr., 84.)

It was

The item of $601.55, adjusted by the surrogate in 1855, was not conclusive between attorney and client. simply an allowance of so much to the defendants upon their account in exoneration of their liabilities. When the decree making such allowance was reversed, even the slight vitality given by the surrogate's allowance was gone, and the items thereafter remained as if they had never been allowed.

The referee allowed interest to the plaintiff upon his disbursements for defendants from the date of such disbursements respectively to the date of his report (June 12, 1868). In this I think the referee erred. He should have restricted that interest as in the case of services, and allowed interest thereon only from the 26th day of February, 1866. As the defendants' obligation to repay these advancements is implied from the relations of the parties, interest by way of penalty,

Mygatt v. Willcox.

cannot be charged thereon until a demand has been made, or the amount has been liquidated between the parties, or the debt become due, by the termination of the contract of employment. Until the debtor is in some manner in default, for not paying the money in pursuance of his contract, he is not chargeable with interest. (Van Rensselaer v. Jewett, 2 N. Y. R., 135.) We have already held that this contract was not complete, and that the plaintiff's right of action for his services and payment was not perfect until February, 1866. How, then, can it be held that the defendants were guilty of a breach of contract whenever a payment was made by plaintiff in their behalf, so as to entitle such payment to draw interest. The plaintiff was not bound to make these advances for the defendants; but if he did so, they must be treated as a part of his account, payable, as and when the remainder becomes payable, and drawing no more interest than such remainder. Moneys advanced are no more sacred, under the circumstances of this case, than services. Whenever the account as a whole is payable, from that time, interest is chargeable. (Adams v. Fort Plain Bank, 261.) The exceptions of defendants are sufficient to cover the error of the referee.

The amount of interest improperly allowed as afosesaid, upon disbursements, prior to February 26, 1866, is $281.33. A new trial, costs to abide the event, should be granted, unless the plaintiff shall stipulate to remit that amount from the judgment in this action at its date, in which case such judgment to be affirmed without costs to either party on this appeal.

Clinton v. Eddy.

WILLIAM M. CLINTON, Appellant, v. JOHN EDDY, Respondent.

(GENERAL TERM, SIXTH DISTRICT, MAY, 1889.)

The complaint averred, that under a contract between the plaintiff and defendant, the latter had received a sum of money, two-thirds of which belonged to the plaintiff, and the balance to the defendant, and claimed the two-thirds; the answer pleaded the statute of limitations, denied the alleged receipt of the money, averred to the contrary, that plaintiff had received it under the contract, and demanded judgment for the one-third. Held, plaintiff could not, without pleading it in reply, avail himself of the statute of limitations in bar of defendant's claim to the one-third.

The defendant's averment of indebtedness by plaintiff, was a statement of new matter constituting a counter-claim.

The term counter-claim, as used by the Code, comprehends recoupment and set-off. Per BOARDMAN, J.

THE essential controversy grew out of a sum of $115, belonging two-thirds to plaintiff and one-third to defendant, which the plaintiff claimed had been paid to defendant in 1854, and the defendant claimed the same money had been paid to the plaintiff. The plaintiff therefore set up, as a substantive cause of action, that defendant was indebted to him for two-thirds of said $115, and interest. The defendant answered denying such indebtedness and the receipt of said moneys, and alleged that plaintiff received the same; and claimed for affirmative relief that plaintiff was indebted to him for the one-third of said $115 so alleged to have been received by plaintiff. Defendant also set up the statute of limitations in bar of plaintiff's alleged claim for the two-thirds. The plaintiff served no reply. Upon the trial the referee found as a fact that plaintiff received said $115, and was indebted to the defendant for the one-third thereof, with interest; that the statute of limitations would have barred defendant's recovery if it had been set up by reply, and that such statute was not available to plaintiff without being pleaded. To this plaintiff excepted, and appealed from the judgment entered for the defendant.

Clinton v. Eddy.

L. I. Burditt, for the appellant.

E. Countryman, for the respondent.

Present-BALCOM, BOARDMAN and PARKER, JJ.

By the Court-BOARDMAN, J. The plaintiff claims that he is entitled to two-thirds of a sum of money received by defendant by virtue of a contract in relation thereto between the parties. The defendant denies the receipt of such money; alleges the plaintiff received it and by virtue of the same contract, and claims to recover his one-third thereof from plaintiff. This is clearly a counter-claim under the Code. It is new matter constituting a counter-claim existing in favor of the defendant and against the plaintiff, between whom a several judgment might be had in the action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, and connected with the subject of the action. Again, as the plaintiff's action arises on contract, the defendant's cause of action also arising on contract, and existing at the commencement of the action, is a counter-claim. (Code sections 149, 150.) By section 153, such answer must be replied to if it contain a counter-claim, or, by section 168, the same will be taken as true. The term counter claim, as used in the Code, is, in general, broad enough in its signification to include recoupment and set-off. (Lemon v. Trull, 13 How., 248, aff'd, in Court of Appeals, 16 How., 576, n.; Pattison v. Richards, 22 Barb., 143; Vassear v. Livingston, 13 N. Y., 248, affirm'g S. C., 4 Duer, 285, 10 How., 67, 14 id., 97, 13 id., 84, 37 id. 299; Thompson v. Kessel, 30 N. Y., 383; Gleason v. Moen, 2 Duer, 639; Xenia Bank v. Lee, 2 Bosw., 694; Schubart v. Harteau, 34 Barb., 447; Leavenworth v. Packer, 52 Barb., 132.) These cases leave no doubt that defendant's answer sets up a counterclaim, which was admitted, by the neglect to reply. Even by the narrow distinction of a set-off, it has been held that a reply was necessary. (9 Howard, 263, 356; 10 Howard, 148.)

The case of Thompson v. Sickles (46 Barb., 49) is not in

Howard v. Robbins.

point. The considerations suggested by that case arose under section 112 of the Code, and were due to the peculiar relations of the parties. The set-off was not a claim by the defendant against the plaintiff, but against the plaintiff's assignor. The defendant could not have maintained an action thereon against the plaintiff, and that constitutes an essential requisite of a counter-claim. The same principle is established in Wolf v. H. (13 How., 84) and in Gleason v. Meno (2 Duer, 639). The equities existing between the assignor and the defendant are preserved by the Code, and they are treated as equitable payments in a controversy between the assignee and defendant.

There is no doubt the referee was correct in holding, that the answer in this case contained new matter constituting a counter-claim, and that such counter-claim cannot be barred by the statute of limitations, unless the same be pleaded by a reply.

The judgment appealed from should be affirmed with costs.

DANIEL HOWARD and FERRIS P. HURD V. ARCHIBALD ROBBINS and GEORGE E. BARTLETT.

(GENERAL TERM, SIXTH DISTRICT, JULY, 1869.)

Every encroachment upon a public highway is not a nuisance.

An encroachment, which does not prevent the use of the highway for its ordinary purposes, is not, as such, a nuisance.

Nor have the trustees of the village of Watkins, by the charter of that village (§ 4, tit. 4, ch. 125, Laws 1861), power to declare that a nuisance, which, by law, is not recognized as such.

Accordingly, where said trustees, proceeding in the manner directed by said charter, declared an encroachment on one of the village streets to be a nuisance, and the defendants, being thereupon deputed by them so to do, removed it; and in an action by the owner to recover damages for such removal, the evidence did not establish a nuisance in fact.-Held, defendants were not protected by the determination and direction of the trustees. It seems, where an encroachment on a highway constitutes a nuisance, it may be abated to that degree only which will enable the public to enjoy the right of way.