
    George H. Eldridge et al., Resp’ts, v. Moses R. Crow, App’lt.
    Appeal from judgment entered on order sustaining demurrer, to counterclaim.
    
      A. Perry, for app’lt; B. D. Eisler, for resp’ts.
   Ehrlich. C. J.

The matters set up by the defendant, are pleaded as a counterclaim, and as such they are not the subject of counterclaim to an action on a promissory note. The defendant had not paid O’Hara’s claim on which he relies, and may -never be obliged to pay it or any part thereof, and until then his loss is not the subject of set-off. In view of these facts, the condition said to have been affixed to the delivery of the note, does not aid the allowed counterclaim, as such. It follows that the judgment appealed from must be affirmed, with costs.

McCarthy, J., concurs.  