
    Charles Wells v. George A. Henshaw.
    1. In an action upon contract, for goods sold and delivered; the defendant may set up in Ms answer, by way of set-off, or counter-claim, a judgment recovered by Mm against the plaintiff before the suit brought by the latter was commenced; notwithstanding the provision of the Code, that “no action shall be brought upon a judgment rendered in any Court of this state, except a court of justice of the peace, between the same parties, without leave of the Court for good cause shown, on notice to the adverse party.”
    2. It may be so set up, as a set-off or counter-claim, without obtaining leave of the Court.
    (Special Term,
    December 21, 1858,
    before Boswobth, Ch. J.)
    The complaint alleged a sale and delivery of goods to the defendant; that he agreed to pay therefor $61.04; admitted the payment of $3.50, on account, and prayed judgment for the balance.
    The answer as a third defense, sets up the recovery of a judgment before the commencement of this suit, by the defendant against the present plaintiff; and avers that it is in full force and unpaid, and prays that the amount due on it may be deducted from any sum, which the plaintiff may show to be due on the cause of action stated in the complaint.
    The plaintiff demurred to this part of the answer.
    
      K Seymour, for plaintiff.
    
      William Stanley, for defendant.
   Bosworth, Ch. J.

—The demurrer to the third defense, or counter-claim is not well taken. This action is upon contract to recover the price of personal property sold. In such an action the Revised Statutes give the defendant a right to set-off any judgment which he may have recovered against the plaintiff, which is in force and unpaid. (2 R. S., 354, sec. 32, sub. 1.)

Section 71 of the Code has not repealed this provision of the Revised Statutes. It was doubtless the object of section 71 to prevent a party, who had recovered a judgment, from bringing an action upon it fox the mere purpose, of increasing its amount by adding to it the costs of a suit upon it. (Tufts v. Braisted, 4 Duer, 607.) The whole prohibition is, that “ no action,” shall be brought upon it, “between the same parties,” without leave, &c.

When the Code declares, that a “defendant may set forth by answer, as many defenses and counter-claims as he may have,” &c., it undoubtedly meant to provide, that anything, which by pre-existing law is a defense, (and not declared by the Code to be no longer a defense) might be set up as a defense. (§ 150, sub. 2.)

Considered as a counter-claim, it answers the definition of that term, as given by the Code. It Is a cause of action in favor of the defendant, against the plaintiff, which existed at the commencement, of this suit.

All that can be said of it, by the plaintiff is, that the defendant could not bring “an action” upon it, without leave of the Court. But no law has declared that it may not be pleaded as a set-off, or counter-claim. The Revised Statutes provide that it may be pleaded as a set-off. If the Code, may be regarded as having named the claim, a counter-claim, when set up as a defense, then it allows the judgment to be set up as such.

I think it clear, that the demurrer to this part of the answer, is not well taken. But the plaintiff will be allowed to withdraw his demurrer, and to reply on terms.

Ordered accordingly.  