
    Blood v. Kane.
    
      (Supreme Court, General Term, Fifth Department.
    
    April 12, 1889.)
    Set-Off and Counter-Claim—Claims in Different Rights.
    In an action against defendant in her individual capacity on her personal contract to pay the funeral expenses incurred on the death of her husband, of whose will she is executrix, an open account in favor of the testator against plaintiff is not available as a counter-claim.
    " Appeal from judgment on report of referee.
    
      Holt & Holt, for appellant. Stearnes & Kingsley, for respondent.
   Macombeb, J.

The action is brought to recover the sum of $85 for furnishing a casket, and for the burial, etc., of the body of one James Kane, the husband of the appellant, and also to recover the sum of $25 for like services rendered in behalf of the appellant for the removal, etc., of the body other brother from the cars to the respondent’s rooms, and for the use of a hearse therefor. Ho question seems to have been raised in regard to the promise of the appellant to pay for the services rendered by the respondent to her deceased brother, and she is consequently liable therefor, for the amount ($10) allowed by the referee. The appellant set up in her answer a counter-claim, being an indebtedness upon an open account, owing by the respondent to the appellant’s husband, in the latter’s life-time. The referee has rejected all evidence of this alleged counter-claim, on the ground that the same is not available to her individually in this action, which is against her individually, and not as the executrix of her late husband’s last will, and has given judgment for the further sum of $85 asked for in the complaint, with interest from the time the services were rendered. There is no evidence in the case as made up that the defendant undertook by her agreement to make compensation for the plaintiff’s services out of the estate of her husband only; on the contrary, she appears absolutely to have contracted individually for such payment. The only question, therefore, in the case is whether, having undertaken individually to pay the debt, and the action being against her individually, and not as the personal representative of her husband’s estate, it is competent for her to defeat the plaintiff’s claim in whole or in part by the counter-claim set up in the answer. The counter-claim (Code, § 501) must be itself a complete cause of action in favor of the defendant against the plaintiff, existing at the time of the beginning of the action. Mayo v. Davidge, 44 Hun, 342; In re Hill, 17 Abb. N. C. 273. The defendant had no title to or interest in the alleged counter-claim, except as she obtained the same by virtue of letters testamentary issued to her. The open book-account could not pass title to her by mere delivery of it, and for that reason this case is distinguishable from the case of Barlow v. Myers, 24 Hun, 286. The true test is, in this instance, could the defendant have brought an action against the plaintiff to recover upon the indebtedness owing to her husband, without alleging and proving that she liad acquired, by virtue of the will and of the letters testamentary, title to the account? Section 1814, Code Civil Proc., requires an action to be brought in the representative capacity of the party, when the cause of action is held by him as executor or administrator. See, also, Buckland v. Gallup, 105 N. Y. 453, 11 N. E. Rep. 843. The judgment appealed from should be affirmed, with costs.  