on contract, existing at the commencement of the ac tion.(5) Substitute for first part of Co. Proc., 150. See Wilder v. Boynton, 63 Barb. 547. (1) Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191; Waddell, Darling, 51 id. 327; Hunt v. Chapman, id. 555; Smith v. Hall, 14 Alb. L. J. 329; Caryl v. Williams, 7 Lans. 416. (2) Tallman v. Bresler, 65 Barb. 369; Pittman v. Mayor, 6 T. & C. 89; Burroughs v. Garrison, 15 Abb. N. S. 144; Foster v. Coe, 4 Lans. 53. (3) Perry v. Chester, 53 N. Y. 240; Bathgate v. Haskins, 59 id. 533. (4). Coit v. Stewart, 12 Abb. N. 8. 216; Clift v. Northrup, 6 Lans. 330; Isham v. Davidson, 52 N. Y. 237; Moore v. Rand, 60 id. 208; Hening v. Punnett, 4 Daly, 543; Hopkins v. Lane, 4 T. & C. 311; Dounce v. Dow, 57 N. Y. 16; Chamboret v. Cag ney, 41 How. 125; s. c., 10 Abb. N. S. 31; Miller v. Barber, 4 Hun, 802; Gleadell v. Thomson, 56 N. Y. 194; Cook v. Soule, id. 420; Hoppough . Struble, 60 id. 430; Glen, etc., v. Hall, 61 id. 226; Giles v. Austin, 62 N. Y. 486. (5) Hunt v. Chapman, 51 N. Y. 555; Merrill v. Green, 58 id. 270: Davis v. Stover, 58 id. 473; Arnold v. Nichols. 64 id. 117. And see the elaborate notes to 159 in Voorhies' and Walt's Codes. § 502. [Amended, 1877.] Rules respecting the al lowance of counterclaims. But the counterclaim, specified in subdivision second of the last section, is subject to the following rules: 1. If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a de mand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counter claim, to the amount of the plaintiff's demand, if it might have been so allowed against the party, or the assignee, while the contract belonged to him.(1) 2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it, after it became due, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill be longed to him.(2) 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose "benefit the action is brought, as will satisfy the plaintiff's de mand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the perSon beneficially interested. Post, 1909. Founded upon 2 R. S. 354, 18, subds. 8, 9 and 10, and part of subd. 34;12 1d. 356. Where a 603. [Amended, 1877.] Judgment, when demand and counterclaim are equal or unequal. counterclaim is established, which equals the plaintiff's demand, the judgment must be in. favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof As is due from the plaintiff. Where part of the excess is not due from the plaintiff, the judgment does not other person, so much thereof as the judgment does prejudice the defendant's right to recover, from an not cancel. Boston Silk Mills v. Eull, 6 Abb. N. S. 399; s. c., 1 Sweeney, 359; 37 V,21,22 (2 Edm. 367). Ogden v. Coddington, 2 E. D. Smith, 317: How. 299. $504. Id.; for affirmative relief. — In a case not an specified in the last section, where a counterclaim is established, which entitles the defendant to affirmative judgment, demanded in the answer, judg. ment must be rendered for the defendant accordingly. Co. Proc., last clause of 263. $505. Counterclaim, when defendant is sued in a representative capacity. executor or an administrator, or other person sued in a In an action against an representative capacity, the defendant may set forth, as other person whom he represents, where the person so counterclaim, a demand belonging to the decedent, or represented would have been entitled to set forth the same, in an action against him. 1R. S. 355, 25. Patterson v. Patterson, 59 N. Y. 574, and cases. $506. Id.; when plaintiff is an executor or adminisministrator, in his representative capacity, a demand trator.-In an action brought by an executor or adagainst the decedent, belonging, at the time of his 12 death, to the defendant, may be set forth by the de fendant as a counterclaim, as if the action had been brought by the decedent in his life-time; (1) and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity.(2) Execution can be issued upon such a judgment, only in a case where it could be issued upon a judgment, in an action against the executor or administrator. 2 R. S. 355, 23 and 24. (1) Patterson v. Patterson, 59 N. Y. 574; Mo ritt v. Seamen, 6 Barb. 333; Mercein v. Smith, 2 Hill, 213; Hills v. Tad mans, 21 Wend. 674: Fry v. Evans, 81d. 531; Root v. Taylor, 20 Jouns 137; Ketchum v. Milne, Seld. Notes, p. 56. (2) Merritt v. Seamen, 5 Barb. 330. $507. [Amended, 1879.] Defendant may interpose several defences or counterclaims; rules relating thereto. A defendant may set forth, in his answer, as many defences or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defence or counterclaim must be separately stated, and numbered. Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer Co. Proc., part of ? 150, am'd. Benedict v. Seymour, 6 How. 298: Lip. pencott v. Goodwin, 8 id. 242; Bridget v. Payson, 3 Sandf. 210; Cramer v. Benton, 4 Lans. 291; s. c., 60 Barb. 216; Hicks v. Sheppard, 4 Lans. 335. See notes to 150, Voorhies' Code; also id., Wait's Code. $508. [Amended, 1877.] Partial defences. A par tial defence may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defence to the entire complaint, or to one or more sepa rate causes of action, therein set forth. Upon a demur rer thereto, the question is, whether it is sufficient for that purpose.(1) Matter tending only to mitigate or re duce damages, in an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defence, within the meaning of this section.(2) New. See post, ? 536. (1) Hager v. Tibbets, 2 Abb. N. S. 97; Bennett 2. Matthews, 64 Barb. 410. (2) See Foland v. Johnson, 16 Abb. 235, and cases; Harter v. Crill, 33 Barb. 283 Moore v. ¡Devoy, 37 How. 18. See Voorhies' Code, 165, uote f. (10th ed., p. 254). Fink v. Justh, 14 Abb. N. S. 107; Spooner v. Keeler, 51 N. Y. 527; Jettries v. McKellop, 48 How. 122; Wehle v. Haviland, 42 id. 399; Kelly v. Taintor, 48 id. 270. § 509. [Amended, 1877.] When defendant to de mand affirmative judgment. -- Where the defendant answer. New. See 504, ante. § 510. [Stricken out in 1877.] $511. [Amended, 1879.] When pleadings admit part of plaintiff's claim.—Where the answer of the defendant, expressly or by not denying, admits a part the plaintiff's claim to be just, the court, upon the plaintiff's motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff's election. If the plaintiff elects to continue the action, his right to costs upon the judgment is the same, as if it was taken in an action brought for only that part of the claim. If the plaintiff does not elect to continue the action, costs must be awarded, as upon final judgment in any other case. Substitute for concluding paragraph of 244, Co. Proc. posed for less than plaintiff's claim.-In an action $512. Judgment, where counterclaim only is interupon contract, where the complaint demands judgment for a sum of money only, if the defendant, by his answer, does not deny the plaintiff's claim, but sets up & counterclaim amounting to less than the plaintiff's claim, the plaintiff, upon filing with the clerk an admission of the counterclaim, may take judgment for the excess, as upon a default for want of an answer. admission must be made a part of the judgment-roll. Co. Proc., part of 246, am'd. The A defence which does not involve the merits of the action, shall second of this chapter. From 2 B. S. 352, 87 (2 Edm. 364). ARTICLE FOURTH. REPLY. BEC. 514. Reply; what to contain. 615. Judgment upon failure to reply. 516. Cases where the court may require a reply. 617. Plaintiff may set forth several avoidances in reply. S614. [Amended, 1877.] Reply; what to conta Where the answer contains a counterclaim, the pla tiff, if he does not demur, may reply to the count claim. The reply must contain a general or speci denial of each material allegation of the counterclai controverted by the plaintiff, or of any knowledge information thereof sufficient to form a belief; and may set forth in ordinary and concise language, wit out repetition, new matter not inconsistent with th complaint, constituting a defence to the counterclaim. Co. Proc., part of 153. Leslie v. Leslie, 11 Abb. N. S. 311; Ludin ton v. Slauson, 38 N. Y. Supr. 81; Jarvis v. Pike, 11 Abb. N. S. 39: Williams v. Willis, 15 id. 11; Thomas v. Loaners' Bank, 38 N. Y. Sup 466. See also, 22 How. 240; 7 td. 121; 9 Abb. 39; 10 Bosw. 143; 1 Ab N. S. 1; 3 Code Rep. 215. S515. Judgment upon failure to reply. If th plaintiff fails to reply or demur to the counterclain the defendant may apply, upon notice, for judgmen thereupon; and, if the case requires it, a reference ma be ordered, or a writ of inquiry may be issued, as pre scribed in chapter eleventh of this act, where the plain tiff applies for judgment. Id., 154, am'd. See post, 1219. Bridge v. Payson, 5 Sandf. 210; Ay mar v. Chace, 12 Barb. 301; Bates v. Rosekrans, 37 N. Y. 409, McKen zie v. Farrell, 4 Bosw. 192; Lawrence v. Bank, 3 Rob, 142. § 516. Cases where the court may require a reply -Where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its dis cretion, on the defendant's application, direct the plain tiff to reply to the new matter. In that case, the reply, and the proceedings upon failure to reply, are subject to the same rules as in the case of a counterclaim. Id., concluding paragraph of § 153. Hubbell v. Fowler, 1 Abb. N. 8. 1; Jarvis v. Pike, 11 id. 398. 517. [Amended, 1877.] Plaintiff may set forth several avoidances in reply.—A reply may contain two |