
    In the Matter of the Final Judicial Settlement of the Accounts of Ann Miller, as Administratrix, etc., of Andrew J. Miller, Deceased.
    
      (Surrogate’s Court, Otsego County,
    
    
      Filed May, 1898.)
    ^Payment or Debts — Set Off.
    The mere fact that a joint note of two persons sought to be set off by the administratrix against a liability of the intestate to one of them, was adfnitted in evidence without objection, does not establish the counterclaim; but it is the duty of the court to consider the evidence and determine the-question according to the laws declaring that such a set off is not permissible.
    Motion for reargument in the above-entitled proceedings as to the claim of Emma Crounse.
    J ames W. Barnum, for motion; Charles T. Brewer, opposed.
   Arnold, S.

In the matter of the claim of Emma Crounse against Andrew J. Miller, deceased, I decided that the joint note of Emma Crounse and her husband, held bj the adminis-tratrix of Miller’s estate, could not be allowed as a counterclaim. A motion is now made for a reargument. Counsel for the administratrix points to the fact that the note was received in evidence without objection, and he insists that, therefore, any objection which might have existed to its being considered as a counterclaim was waived; that the objection being waived, the note establishes the liability of Emma Crounse for its face value, with interest, and that that amount should be allowed aa a counterclaim.

Upon the submission of the case, it was the duty of the court to consider the effect of the evidence. If the evidence offered by the claimant failed to establish a cause of action against the administratrix, her claim had to be dismissed, whether such evidence was objected to or not; on the other hand, if the evidence of the claimant established a cause of action, the admin-istratrix, to establish a counterclaim, had to prove a cause of action against claimant.

Does the evidence establish a cause of action against the claimant, individually?

The evidence establishes the joint liability of Emma Crounse and Levi Crounse; therefore a joint judgment could only be rendered upon it. St. Michael’s Church v. Behrens, 10 Civ. Pro. 181-189.

The Code of Civil Procedure does not allow such a cause of action as a. counterclaim to an, individual liability. § 501.

The evidence does not establish a cause of action against claimant, individually. Spofford v. Rowan, 124 N. Y. 108, at page 113.

I have carefully examined the points submitted by the learned counsel for the administratrix, and the cases that he has cited. I cannot see that those cases conflict in any way with the oases cited above, or with the views herein expressed. The other matters referred to in the moving papers had been allowed before this motion was made.

The motion is denied, with $10 costs.

Motion denied, with $10 eosts.  