
    Wallace Mayo, Resp’t, v. Sallie M. Davidge et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1887.)
    
    Practice—Counterclaim:—When demurrable under Code Civil Pro., §501.
    It is essential to a counterclaim that it exist in the hands of the defendants who set it up at the time of the commencement of the action. If it did not, it will he struck out on demurrer, under Code Civ. Pro., § 501. The rights of the parties become fixed according to the facts which existed. when the plaintiff commenced his action.
    Appeal from an interlocutory judgment sustaining plaintiff’s demurrer to a counterclaim interposed by the defendants.
    
      F. Cantine, for app’lts; H. S. Snow, for resp’t.
   Barnard, P. J.

The complaint is one for the foreclosure of a mortgage made by Sallie M. Davidge and her husband for $2,000. A judgment for a deficiency is asked against both the wife and the husband, and the loan, so far as disclosed by the complaint, was made to them jointly.

They answer, and, among other defenses, aver a loan, made by the husband to the plaintiff a balance due thereon, an assignment of that balance to Longuemon and a re-assignment of the same by him to the defendants Davidge and husband.

The answer does not contain an averment that the assignment was made or that the defendants above named obtained the title thereto before the commencement of this action. ”

A demurrer was interposed to the counterclaim thus pleaded.

By section 501 of the Code the character of a counter-is established. In any action on contract “any other cause of action on contract existing at the commencement of the action.”

By section 495 it is made a cause for demurrer to a counterclaim that it is not of the character specified in section 501.

It is, therefore, essential to a counterclaim that it exist in the hands of the defendants who set it up at the time of the commencement of the action.

The rights of the parties become fixed according to the facts which existed when the plaintiff commenced his action.

This is accordance with the rules of pleading as they have always existed.

It is never proper for a party defendant to buy a defense or a counterclaim after he is sued.

Insolvency was never a reason why the rule of pleading should vary. All parties are under the same rules of pleading. It cannot be assumed that the wife, under the allegtions of the complaint, is not liable for the deficiency, and that the husband is alone liable so as to prevent the counterclaim on behalf the husband.

The husband does not own the same; his former title passed from him and the re-assignment was taken to the wife and husband.

Their right to set it up does not exist because it was acquired after suit brought.

Judgment affirmed, with costs.

Pratt and Dykman, JJ , concur.  