
    Matter of the Final Judicial Settlement of the Accounts of Ann Miller, as Administratrix, Etc., of Andrew J. Miller, Deceased.
    (Surrogate’s Court, Otsego County,
    May, 1898.)
    A joint liability cannot be set off against an individual one — Waiver.
    The mere admission, without objection, upon a judicial settlement, of a joint note of two persons sought to be set off by the aidministratrix against the liability of her intestate to one of them, does not establish the counterclaim -and it remains the duty of the court to decide the question according to the established law that such a set-off is not permissible.
    Motion for reargument in the- above-entitled proceedings as to the claim of Emma Crounse-.
    James W. Barnum, for motion.
    Charles T. Brewer, opposed.
   Arnold, S.

In the matter of the claim of Emma Crounse against Andrew J. Miller, deceased, I decided that the joint note of Emma Crounse and her -husband, held by the administratrix of Miller’s estate, could not be allowed as a counterclaim.

A motion is now made for a reargument. Counsel for the administratrix points to the fact that the note was received in evidence without objection, and he insists that, therefore, any objection which might have existed to its being considered as a counterclaim was waived; that the objection being waived, the note establishes the liability of Emma Oroimse for its faca value,, with interest, and that that amount should be allowed as a counterclaim.

Upon the submission of the case, it was the duty of the court to consider the effect of the evidence. H the evidence offered by the claimant failed to establish.a cause of action against the administratrix, her claim had to be dismissed, whether such evidence was objected' to :or not; on the other hand, if the evidence of the claimant, established a cause of action, the administratrix, to establish a counterclaim, had to prove a cause of action against claimant.

Does the evidence establish a cause of action against the claimant, individually?

■ ' The evidence establishes the joint liability of Emma Crounse and Levi Orounse; therefore, a joint judgment could only be rendered upon it. St. Michael’s Church v. Behrens, 10 Civ. Pro. 181-189.

The Code of Civil Procedure does not allow such a cause of action as a counterclaim, to an individual liability. ' § 501. '

The evidence does not establish a cause of action against claimantj individually. Spofford v. Rowan, 124 N. Y. 108, at p. 113.

I have carefully examined the points submitted by the learned counsel for the administratrix, and the cases that he has. cited. I cannot see that those cases conflict in any way with the cases cited above, or with the views herein expressed. The other matters referred to in the moving papers had been allowed before this motion was made.

The motion is denied, with $10 costs.

Motion denied, with $10 costs.  