
    Halsey and another v. Carter.
    
      At Special Term,
    Jan. 3, 1853.
    A defendant is not bound, in his answer, to set up a demand, which from its nature is a proper subject of a counter claim.
    He may elect to enforce its recovery in a separate suit.
    A defendant has at all times had such an election, in relation to a set-off, or a recoupment of damages, and his rights, in this respect, have not been varied or affected by the Code, §§ 149, 150.
    These points arose, and were so decided by Duer, J., in the aboye case, and upon consultation his decision was approved by all the judges.
    
      Quere, whether when a counter-claim is set up in the answer, the plaintiff should be permitted to discontinue merely upon the payment of costs ?
   This question was also partially discussed in the same case, but as it was unnecessary to be determined, no- opinion was expressed in relation to it.  