
    George Maders, App’lt, v. Zacariah Lawrence, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 21, 1888)
    
    1. Warranty—Breach of—When a proper counter-claim—Code Civil Pro., § 501, sub. 1
    In an action on a promissory note, given for a certain difference due plaintiff on an exchange of horses, damages from breach of plaintiff’s warranty as to the soundness of his horse, is a proper counter-claim under Code Civil Procedure, § 501, subd. 1.
    
      % Same—Statute of Limitation.
    Where the Statute of Limitation had not run on the note, hut it appeared that more than six years had elapsed since the making of the warranty, Held, that although defendant’s right to maintain an independent action for damages for breach of warranty was barred, the same might nevertheless be interposed as a counter-claim to the note.
    3. Same—Evidence—Sufficiency of.
    Defendant’s testimony was that plaintiff warranted the horse, while plaintiff denied the warranty. The evidence showed that the horse which defendant secured from the plaintiff upon the exchange became worthless, in consequence of the defects of which he complained. Held, that a verdict for defendant was warranted by the evidence.
    Appeal by the plaintiff “from a judgment of the county court of Essex county, which affirmed a judgment rendered in a justice’s court in favor of defendant.
    
      T. A. Rowe, for app’lt; T. F. Conway, for resp’t.
   Ingalls, J.

This action was commenced in justice’s court, and the plaintiff complained upon a promissory note, of which the following is a copy:

“AusXble Forks, N. Y., August 25,1879.
Six months from date, for value received, I promise to pay George Maders, fiften dollars, with interest
his
ZACHAEIAH x LAWRENCE.
mark
Witness J. S. Dwyer.”

By an amended answer the defendant

First. Denied the complaint, and each and every allegation thereof.

Second. By way of counter-claim, stated in substance, that the plaintiff and defendant exchanged horses, and that the note in question, was given by the defendant to the plaintiff, as the difference between the horses. That at the trade the plaintiff warranted his horse to be perfectly sound, and very valuable. That the horse proved to be unsound, viz., had the heaves, was lame, and of little, or no value.

Third. For a third answer or defense, the defendant alleged that, the note mentioned in the complaint was wholly without consideration and void. Upon the trial the parties were witnesses, and the defendant stated the warranty substantially as alleged in the complaint, and the plaintiff denied that he warranted the horse. Evidence was produced to the effect, by the defendant, that the horse which he received from the plaintiff upon the exchange, became worthless in consequence of the defects of which he complained. The jury rendered a verdict in favor of the defendant, of no cause of action. We are satisfied that the evidénce justified the verdict. It is contended by the appellant that as the defendant had an immediate right of action upon the warranty, and more than six years having elapsed from the making of the contract, and the commencement of this action, the statute of limitations constituted a bar to the defendant’s counter-claim, based upon such pretended warranty. This presents the material question upon this appeal. As between the parties to this action, the giving of the promissory note in suit, constituted but part of the transaction, as the contract which gave rise to such note, also included the warranty in question, and the defendant was at liberty to assert the breach of such warranty, with an allegation of damages in consequence thereof as a counter-claim. Code Civil Procedure, § 501, subd. 1; Farrell v. Krone, 24N. Y. W. Dig., 89; Hopkins v. Lane, 87 N. Y., 501.

The case last cited supports the proposition, although the doctrine was not there applied on account of a defect of parties. In the case at bar the plaintiff asserted the note as a valid cause of action, based upon an adequate consideration, and the defendant assailed the same up'on the ground that in the contract, and as a part thereof, the plaintiff warranted his horse to be perfectly sound and very valuable, when in fact he was unsound and worthless; and the defendant insisted upon the damages arising from such breach of warranty as a defense to said note. The plaintiff, by commencing such action upon the note, invited any valid defense which the defendant had, arising from the transaction which originated the note, and which legitimately assailed the consideration thereof. We think the practical effect of asserting such note by the plaintiff was to give efficacy to the defense of the defendant by way of counter-claim, or at least as a defense to the extent of the note by defeating the consideration thereof. It would seem unreasonable and unjust to allow the plaintiff, under the circumstances, to delay an action upon the note until after six years from the giving thereof, and then assert the same and defeat the defendant’s claim or defense upon the ground that the statute of limitations barred such defense. We do not think the law necessitates such a result. If the defendant had commenced an action upon the warranty, doubtless such statute would have barred a recovery, but we conclude that a very different rule obtains when the plaintiff asserts a cause of action as to which such statute has not attacked, and the defense is merely resorted to as an attack upon the consideration of the obligation which is the subject of the action, and arising from the same transaction such defense is resorted to by the defendant as a shield and not a sword. By prosecuting the note the plaintiff, in effect, asserts that the same had a good and adequate consideration to support it, and the defendant by interposing the defense denies such consideration, thus accepting and meeting the issue in that respect tendered by the plaintiff. Again, the case fails to show that any such question was insisted upon at the trial, but on the contrary, the case was tried upon the merits and the plaintiff was defeated, and it seems quite apparent that such substantial justice was administered in the justice’s court and the county court has given its approval of such proceedings. It is but reasonable to require parties who litigate in the justice’s court to fairly raise the questions upon which they rely and not to conceal them, and seek upon appeal to take advantage thereof to the prejudice of the adverse party.

We conclude that no error has been committed which requires us to reverse the judgment, and the same is therefore affirmed, with costs.

Learned, Oh. J., and Landon, J., concur.  