
    John Church Company, App’lt, v. George H. Clarke, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 18, 1894.)
    
    1. Pleadings—Counterclaim.
    A claim against plaintiff, acquired by the defendant after the action was commenced, is not available as a counterclaim under § 501 of the Code.
    2. Same—General denial—Proof.
    Under a general denial in a reply, the plaintiff is entitled to prove that no such claim, as is set up in the answer as a counterclaim, existed in defendant’s favor when the action was begun.
    Appeal from a judgment entered on a verdict in favor of defendant and from an order denying a motion for a new trial.
    
      Youmans, Moss & Knipp, for app’lt; Reynolds, Slanchfield <& Collin, for resp't.
   Per Curiam.

On the trial, the plaintiff offered to prove that the defendant was not, at the commencement of the action, the owner of the demand set up in his answer as a counterclaim. This evidence was excluded upon the ground that it was not admissible under the pleadings. The reply consisted of a general denial of the matters set up as a counterclaim. The correctness of the ruling is challenged by the appellant, and presents the only question involved on this appeal. The Code, so far as applicable to the question, provides that, in an action on contract, affy other cause of action on contract existing at the commencement of the action may be set up as a counterclaim against the plaintiff. § 501. Thus the right to set up and prove such a claim depends upon its existence at tlie time the action was commenced. It has been held that an answer setting up a counterclaim which fails to show that it existed at the commencement of the action is demurrable. Moody v. Steele, 11 Civ. Proc. R. 205 ; 3 St. Rep. 269 ; Mayo v. Davidge, 44 Hun, 342 ; 8 St. Rep. 844; Rice v. O'Connor, 10 Abb. Pr. 362 ; Van Valen v. Lapham, 5 Duer, 689 ; Abb. Tr. Brief, p. 400, § 481. Thus it would seem that the defendant must not only prove, but must also allege, that the counterclaim in the hands of the defendant existed in his favor when the action was commenced. Such being the case, it must follow, we think, that the plaintiff under the general denial contained in the reply herein, was entitled to prove that no such claim existed in the defendant’s favor when the suit- was begun. Under a general denial in an action on contract, a party may controvert by evidence anything which the other party is bound to allege and prove in the first instance, to make out his cause of action, and anything he" is permitted to prove for that purpose. Milbank v. Jones, 141 N. Y. 340; 57 St. Rep. 429. These considerations lead to the conclusion that the court erred in excluding the evidence offered by the plaintiff, and that for such error the judgment should be reversed. Judgment and order reversed, -and a new trial granted, with costs to abide the event.  