Present — Balcom, Boardman and Parker, JJ.
By the Court
Boardman, J.The plaintiff claims that he is entitled to two-thirds of a sum of money received by defendant by virtue of a contract in relation thereto between the parties. The defendant denies the receipt of such money; alleges the plaintiff received it and by virtue of the same contract, and claims to recover his one-third thereof from plaintiff. This is clearly a counter-claim under the Code. It is new matter constituting a counter-claim existing in favor of the defendant and against the plaintiff, between whom a several judgment might be had in the action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff ’s claim, and connected with the subject of the action. ■ Again, as the plaintiff’s action arises on contract, the defendant’s cause of action also arising on contract, and existing at the commencement of the action, is a counter-claim. (Code sections 149, 150.) By section 153, such answer must be replied to if it contain á counter-claim, or, by section 168, the same will be taken as true. The term counter claim, as used in the Code, is, in general, broad enough in its signification to include recoupment and set-off. (Lemon v. Trull, 13 How., 248, aff’d, in Court of Appeals, 16 How., 576, n.; Pattison v. Richards, 22 Barb., 143; Vassear v. Livingston, 13 N. Y., 248, affirm’g S. C., 4 Duer, 285, 10 How., 67, 14 id., 97, 13 id., 84, 37 id. 299 ; Thompson v. Kessel, 30 N. Y., 383; Gleason v. Moen, 2 Duer, 639 ; Xenia Bank v. Lee, 2 Bosw., 694 ; Schubart v. Harteau, 34 Barb., 447; Leavenworth v. Packer, 52 Barb., 132.) These cases leave no doubt that defendant’s answer sets up a counterclaim, which was admitted, by the neglect to reply. Even by the narrow distinction of a set-off, it has been held that a reply was necessary. (9 Howard, 263, 356; 10 Howard, 148.)
The case of Thompson v. Sickles (46 Barb., 49) is not in *63point. The considerations suggested by that case arose under section 112 of the Code, and were due to the peculiar relations of the parties. The set-off was not a claim by the defendant against the plaintiff, but against the plaintiff’s assignor. The defendant could not have maintained an action thereon against the plaintiff, and that constitutes an essential requisite of a counter-claim. The same principle is established in Wolf v. H. (13 How., 84) and in Gleason v. Meno (2 Duer, 639). The equities existing between the assignor and the defendant are preserved by the Code, and they are treated as equitable payments in a controversy between the assignee and defendant.
There is no doubt the referee was correct in holding, that the answer in this case contained new matter constituting a counter-claim, and that such counter-claim cannot be barred by the statute of limitations, unless the same be pleaded by a reply.
The judgment appealed from should be affirmed with costs.