Atwater v. Spader — 12 N.Y. St. Rep. 506

Majority

p. 506

Henry G. Atwater, App’lt, v. Margaret G. Spader et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 13, 1887.)

Headnote

Gotoíter-ci, aims—What maybe interposed as—Code Ciy.Pro., §§ 501, 503.

This action was brought upon an undertaking executed on the procuring of an order of arrest in a civil action. Upon the trial of the action in which the order was obtained, the complaint was dismissed. In the present action it is set up as a defense that prior to the institution of the action last aboved referred to, the defendant therein was indebted to one of these defendants for moneys loaned to him individually and for others loaned to him and another. This latter claim is assigned by the defendant in whose favor it originally existed, to the other who sets it up as a counterclaim. Held, the undertaking upon which this action was brought being joint and several upon which a separate judgment might be recovered against either defendant, that the counter-claim, representing a cause of action against the person who the plaintiff represented at the time of the commencement of the action was properly allowed under Code Civ. Pro., §§ 501, 503.

E. P. Bellamy, for app’lt; W. M. Rosebault, for resp’t.

This is an action upon an undertaking executed by Margaret G-. Spader and J. Vanderbilt Spader fir the procurement of an order of arrest in a civil actim brought by John A. McOaul against William H.G-ale, for tie recovery of money received by him in a fiduciary capaciy.

The order of arrest was obtained, but when the caise came on for trial the complaint was dismissed and the defendant had judgment for the costs of the action.

The defense to the action is this: Prior to the institition of the action of McOaul against Gale, Gale was indebted to the defendant, J. Vanderbilt Spader for money loaied to him individually, and also for money loaned to hin and Louis Spader.

The claim for money loaned to Gale and Spatter was assigned to the defendant Margaret G. Spader, and die sets it up as a counter-claim in this action. The deferlant, J. Vanderbilt Spader sets up the individual indebtedness of Gale as a counter-claim, and there is more than sufficient due upon each of these claims to extinguish any amount the plaintiff can claim in this action. All these facture undisputed, and the sole question involved has refernce to the applicability of the counter-claim to the extingúshment of the plaintiff’s claim upon the undertaking.

p. 507

The undertaking upon which this action is brought is joint and several, and a separate judgment might be recovered in favor of the plaintiff against either one of the defendants, and the counter-claim interposed represents a cause of action against the person whom the plaintiff represents existing at the time of the commencement of this action.

The requirements for the allowance of a counter-claim are prescribed by section 501 of the Code of Civil Procedure, and they are all satisfied and fulfilled by the facts of this case. The allowance of the counter-claim against the assigneee of the undertaking was justified by section 502 of the Code, and justice has been obtained.

. The judgment should he affimed with costs.