
    George H. Cassidy, Appellant, v. George W. Arnold, Impleaded with John M. Rousseau and John B. Arthur, Respondents.
    
      Plea of a recovery for the same cause hy third persons claiming to he assignees of the , present plaintiff—■ when it is insufficient.
    
    After an order of arrest issued in an action brought by one Arnold against one Cassidy had been vacated, Cassidy brought an action against Arnold, and the sureties on the undertaking given by the latter to obtain the order of arrest, for false arrest. The sureties interposed an answer, which, after making certain admissions and denials, stated that the sureties, “Further answering the said complaint and by way' of counterclaim, and setoff,” allege that “prior hereto ” an action was brought by the attorneys who appeared for the plaintiff herein and who in the former action appeared for him as defendant, against Arnold and themselves as sureties in the Municipal Court upon the undertaking, “claiming that the said Cassidy had assigned to them any and all claims”' against them upon the undertaking; that such action had resulted in a judgment against the defendants and that an appeal from such judgment was pending in the Appellate Term. The answering defendants claimed the right to set off on behalf of themselves and Arnold any recovery in the action brought by the attorneys of the present plaintiff and demanded that the complaint be dismissed, with costs.
    The answer did not allege that- the undertaking was in fact assigned to' the.attorneys, or that the Municipal Court action was commenced prior to the present action.
    
      Held, that the new matter set up in the answer was not sufficient either as a complete or partial defense or as a counterclaim.
    Appeal by the plaintiff, George H. Cassidy, from an interlocutory judgment of the Supreme Court in favor of the defendants. John M. Rousseau and John B. Arthur, entered in the office of the clerk of the county of New Y ark on .the 21st day of September, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the answer of the defendants Rousseau and Arthur.
    
      George W. Glaze, for the appellant.
    
      George Gordon Battle, for the respondents.
   Laughlin, J.:

An action was brought by the defendant Arnold against the plaintiff and an order'of arrest was obtained therein, the respondents becoming the sureties upon the undertaking. The order of arrest was subsequently vacated upon the ground that the papers upon which it was granted did not give the court jurisdiction. The defendant in the former action brings this action against Arnold and his sureties for false arrest. The sureties united in an answer, in which, after making certain admissions and denials, “ Further answering the said complaint and by way of counterclaim and setofi,” they allege that “prior hereto ” an action was brought by the members of the firm of attorneys who appeared for the plaintiff herein and who in the former action appeared for him as defendant against Arnold and themselves as sureties in the Municipal Court upon the undertaking “ claiming that the said Cassidy had assigned to them any and all claims ” against them upon the undertaking which was for $250 and a judgment recovered therein against the defendants therein, from which an appeal has been taken which is pending in the Appellate Term, and they claim the right to set off on behalf of themselves and Arnold any recovery in that action and pray for a dismissal of the complaint, with costs.

The demurrer is to this part of the answer setting up new matter as a defense or counterclaim upon the ground that as a separate defense it is insufficient in law and that as a counterclaim it does not state facts sufficient to constitute a cause of action and is not of the character specified in section 501 of the Code of Civil Procedure. We are of opinion that the demurrer should have been sustained. As the learned counsel for the plaintiff well says, assuming the facts stated to be true, they neither bar nor reduce a recovery. The answer does not allege that the undertaking was in fact assigned to the attorneys, and, if not, of course a recovery by the attorneys would not affect the plaintiff’s rights. Nor does the answer allege that the action in the Municipal Court was commenced prior to the commencement of this action so that it may be considered as a plea of an action pending for the whole or part of the same relief. If the undertaking was assigned to' the attorneys and the recovery by them should be sustained and the respondents should be compelled to pay the judgment, and if it shall-appear, that the recovery there embraced any of the damages recovered here, the respondents will undoubtedly be entitled by serving a supplemental answer or otherwise, to relief to that extent against the recovery in this action, but the facts as pleaded neither constitute a defense in whole or in part nor a counterclaim. .-

It follows' that the interlocutory judgment should be reversed,, with costs, and the demurrer sustained, with costs, with leave to the respondents to amend upon payment of. the costs of the appeal and of the demurrer.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ.,, concurred.

Interlocutory judgment reversed, with costs, and de.mtirrer sustained, with costs, with leave to respondents to amend on payment of costs in this court and in the court below.  