
    ANSORGE v. KAISER.
    
      N. Y. Supreme Court, First District, Special Term ;
    
      January, 1889.
    1. Pleading; counterclaim,.] The fact that a prior action is pending on a cause set up in the present action as a counterclaim for which affirmative judgment is demanded, is a defense to the counterclaim.
    2. Pleading; demurrer to counterclaim.] If the pendency of such prior action should appear upon the face'of the counterclaim, the counterclaim would be demurrable.
    3. The same; reply to counterclaim.] If the pendency of a prior action upon the cause set up as a counterclaim does not appear upon the face of the counterclaim, plaintiff may set it up by a reply.
    Henry P. Ansorge brought this action against Rafchel Kaiser; and the cause came before the court on the defend— ant’s demurrer to a reply which plaintiff had interposed as a defense to a cause of action which defendant had*set up in her answer by way of counterclaim.
    
      IS. O. James, for defendant and the demurrer.
    
      David Tim, for plaintiff, opposed.
   Ingraham, J.

The counterclaim set up in the answer .-alleges a breach of warranty and demands an affirmative judgment against the plaintiff for the sum of $800. The reply to such counterclaim alleges that a prior action is -pending undetermined for the same cause of action alleged in said counterclaim between the same parties in this court, and to that reply the defendant demurs.

By section 495 of the Code, it is provided that a plaintiff may demur to a counterclaim upon which the defendant demands an affirmative judgment, where it appears on the face of the counterclaim “ that there is another action pending between the same parties for the same cause.”

If, therefore, it had appeared in the allegation constituting this counterclaim that a prior action was pending for ithe cause of action alleged as a counterclaim, the plaintiff could have demurred to the counterclaim. By section 514, iit is provided that where the answer contains a counterclaim, the reply may set forth, in ordinary and concise language, without repetition, new matter, not inconsistent with •the complaint, constituting a defense to the counterclaim.

I think it is clear that facts which, if they appeared on the face of the counterclaim, would make the counterclaim demurrable and defeat the cause of action set up as a counterclaim, when they do not so appear, is new matter constituting a defense to the counterclaim, for it would be absurd .to suppose that the Legislature intended that a fact appearing oti the face of the counterclaim should defeat the counterclaim, but should not defeat it where that fact did not so .appear, but was alleged in the reply.

The rule was different where the cause of action was alleged in the answer by way of set-off, and not by way of counterclaim, and the case of Naylor v. Schenk (3 E. D. Smith, 135) applied the rule to the defense of set-off and not to a counterclaim.

It is settled in this court that a plea of another action pending between the same parties for the same cause, is a good defense to the action (Groshon v. Lyon, 16 Barb. 461). And under the provisions of the Code above cited, I think it is also a defense to a counterclaim, for which an affirmative judgment is demanded.

The cases cited by defendant have been examined, but, so far as they are inconsistent with the rule before stated, they should not prevail against the express language of the Code cited. The demurrer should, therefore, be overruled and judgment ordered for plaintiff with costs, with leave to defendant to withdraw the demurrer within twenty days, on payment of costs.  