Ferreira v. Depew

Brady, J. —The defence interposed in this action, by way of counter-claim, is not available as such against the cause of action set up. It is not a cause of action against the plaintiff, and the defendant is entitled to no affirmative relief on such defence. (Vassar v. Livingston, 3 Kern., 248.) It is an equitable defence, doubtless—the plaintiff having taken the .claim subject to the equities existing between the defendant and the assignor. The most liberal -construction that could be given to the answer would not render it good, or the defence good, in the legal aspect or relation in which it is presented. The rule will not justify me in construing -a defence asserted as a counter-claim .to be good as an equitable defence to the claim after a demurrer. Hie plaintiff had a right to treat the answer as defective, and to demur; and that right cannot be interfered with in a case like this. The judgment must be for the plaintiff on the demurrer, with liberty to defendant to amend, on payment of costs of the demurrer, and on serving his answer in ten days after service of this order.