[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 273 We concur with the learned General Term, that interest did not begin to run upon the contract, in favor of the plaintiff, either at the date of the transaction with the Syracuse company or of that with Harding and others. The reasons for that conclusion are well set forth in the opinion delivered at General Term by TALCOTT, J., on the first appeal there, and need not to be repeated.
We are constrained to differ from it, however, on the right of the defendant to a judgment for his counter-claim. It was a claim that arose out of the contract or transaction set forth in the plaintiff's complaint as the foundation of his claim, and it was also connected with the subject of the action. It fell within the first subdivision of section 150 of the old Code; it was not obnoxious to the condition stated in the second subdivision of that section, that it must exist at the commencement of the action. Being outside of that express inhibition, it was permissible to set it up in the answer, under the second subdivision of section 149 of the old Code. And if permissible to plead it, then also to prove it and insist upon it as giving right to a judgment. (§ 274, old Code.) The defendant might have been allowed by the court to make a supplemental answer alleging the fact of overpayment, as it was a fact occurring after his former answer, or one of which he was ignorant when his former pleading was made. (Old Code, § 177.) When a supplemental answer has been allowed, put in, and the allegations of it proven, any judgment to which they entitle the defendant against the plaintiff should be rendered in the defendant's favor.
We cannot regard the amendment of the answer in this *Page 275 case consented to by plaintiff as other in effect than a supplemental answer allowed by the court, with all the consequences as to right to prove and right to judgment flowing therefrom. The defendant was permitted to claim by amended answer that the plaintiff had been overpaid, and to ask judgment for the amount of overpayment. No greater latitude need have been allowed by a supplemental answer. Though what was done as to the amendment is briefly stated in the appeal book, we think that it was the purpose of the parties to allow the defendant to make proof of overpayment, if he could, and take all the benefit therefrom that he could legally ask. And we think that he was entitled to judgment for the amount overpaid, under the parts of the old Code that we have cited. Ashley v. Marshall (29 N.Y. 494), as far as it goes, is in accord with this view; while the authorities cited by the learned General Term, as we read them, do not conflict. That of them which is most like the case in hand is Van Valen v. Lapham (13 How. Pr. 240); but pains are taken there to state a case of counter-claim under the second subdivision of section 150, and hence needful to have existed before the commencement of the action. The other cases did not go upon any ground found in the old Code; nor were they treated as principally affected by it.
The order of the General Term granting a new trial should be reversed, and the judgment entered upon the report of the referee affirmed.
All concur, except RAPALLO, J., absent.
Order reversed and judgment affirmed.