Baldwin v. Briggs

Van Brunt, J. — It seems to me that the demurrer in this action must he sustained. There are many cases which decide that in a suit against two or more persons, as partners, a several claim in favor of one defendant only cannot he enforced as a counter-claim (Hurlburt agt. Post, 1 Bosw., 28; Peabody agt. Bloomer, 3 Abb. Pr., 353; 6 Duer, 53; Mott agt. Burnett, 2 E. D. Smith, 50). I can see no reason why the converse of the proposition should not be equally true, viz., that where one defendant is sued upon an individual liability, he cannot set up as a counter-claim a claim which he holds jointly with another against the plaintiff. The cause of action constituting the counter-claim must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action (Sec. 150 of the Code). The cause of action set up as a counter-claim in this action does not exist in favor of the defendant, but in favor of the defendant and his copartner against the plaintiff, and does not comply with the requirements of the section. Furthermore, in liti 478 gating a claim, either made by a firm or against a firm, the opposite party has a right to have all the members of that firm before the court. The demurrer must be sustained with leave to the defendant to amend his answer upon payment of costs, if he be so advised.