Welch v. Hazelton
New York Supreme Court
Demurrer to answer. The action is upon a promissory note. The defendant in his answer alleges, that before the commencement of this action on, &c., he commenced a suit against the plaintiff, by summons for the recovery of a certain demand due from the plaintiff to the defendant, upon contract, before John G. Bixby, one of the justices of the peace of, &c.; that such suit is still pending, and that the cause of action in the plaintiff’s complaint accrued to the plaintiff, and…
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Demurrer to answer. The action is upon a promissory note. The defendant in his answer alleges, that before the commencement of this action on, &c., he commenced a suit against the plaintiff, by summons for the recovery of a certain demand due from the plaintiff to the defendant, upon contract, before John G. Bixby, one of the justices of the peace of, &c.; that such suit is still pending, and that the cause of action in the plaintiff’s complaint accrued to the plaintiff, and might have been set off in the suit commenced by the defendant against the plaintiff, and is still pending before the…
1Opinion of the Court
Marvin, Justice.
The demurrer is well taken. The answer does not state new matter constituting a defence. The Revised Statutes authorize, in certain cases and under certain circumstances, a defendant to set off demands which he has against the plaintiff. (2 R. S. 234, § 48.) By the third subdivision of this section the set off must be a demand for real estate sold, or for personal property sold, or for money paid, or services done; or if it be not such a demand, the amount must be liquidated, or capable of being ascertained by calculation. By the 5th subdivision of the section, the set off can…
2Cited by9 opinions
- Gillespie v. . TorranceNew York Court of Appeals · 1862
- Merritt v. GouleyNew York Supreme Court · 1890
- Boston Mills v. EullThe Superior Court of New York City · 1869
- Barth v. BurtNew York Supreme Court · 1865
- Lee Bank v. KuchingThe Superior Court of New York City · 1860
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