(dissenting):
This cause originated in a Justice’s Court, was afterwards tried on appeal in the County Court of Suffolk county, and now comes to us on appeal from the judgment rendered in favor of the plaintiff. The plaintiff’s claim is as follows;
*33Eighteen cords of wood, at four dollars and seventy-five cents ..........................'................. $85 50
Freight .......................................... 20 00
$105 50
Credit: Twelve thousand brick, at eight dollars........ 96 00
$9 50
The defendant’s claim against the plaintiff is as follows:
1873. October 10. Twelve thousand brick, at eight dollars, $96 00
1873. November 4. Twelve thousand brick, at eight dollars.......................................... 96 00
$192 00
Credit: Ten loads wood, four dollars and seventy-five cents per load......................... $85 50
By freight, twenty cords, at one dollar a cord.... 20 00 --
105 50
$86 50
It will be thus seen that the difference between the parties arises upon the 12,000 of brick of November 4, 1873. If the plaintiff is to be charged with these brick in this action, then the judgment is wrong, and must be reversed; but if the court was right in rejecting this item, then the judgment must be affirmed. The court decided that the only question to be submitted to the jury was the claim of the plaintiff in his complaint, and that all matters alleged in the defendant’s answer should be excluded from their consideration on the ground that the claim of the defendant was not an individual claim, but a claim in his favor jointly with William M. Deen.
There was no controversy over the plaintiff’s claim, and the court, at the close of the testimony, directed a verdict for the full amount of it in the plaintiff’s favor. The item of the defendant’s claim, which is thus rejected, was for brick from Bobins island. These brick, and all the other movable property on the island, were placed in the hands of the defendant and William M. Deen, as trustees, to be sold and disposed of by them and the proceeds applied by them in a certain way. The brick were *34not, therefore, the individual property of the defendant, and even though they were sold and delivered to the plaintiff, yet they were not the proper subject of a set-off in favor of the defendant in an action against him alone. He could not avail himself of this item as a set-off, any more than he could maintain an action on it in his own name alone. Nay, not so well, for as he had no individual interest in the claim at all, he could not be permitted to make use of it to extinguish a personal claim against himself individually. The County Court, however, rejected the claim as an offset or counter-claim, on the broad ground that the defendant was not the sole owner of the claim. The defendant attempted to avoid this difficulty by showing that he had rendered an account as such trustee, and that the two items of brick, which he had charged to the plaintiff, had been charged to himself in these accounts, and that he had become personally liable for them, or rather had assumed them in such accounting.
There are two answers to this proposition. The first is, that if the defendant ever did become liable to pay these items as between himself and his principal, it was not until after the commencement of this action, and they were not valid and existing claims in his hands at the time of the commencement of this action, and they must have been such to make them the proper subject of offset in this action. In the next place, even though the defendant did render an account of his transaction as such trustee, in which he charged himself with these two items, and thus became liable for their payment, as between himself and his principal, did that give him such a title to these items as enabled him to use them in an action in any way; could he maintain an action upon them in his own name ? We think not, but it is not necessary now to decide the question.
We think, therefore, that it results from this examination that there was nothing for the jury, and that the county judge was right in directing a verdict for the plaintiff.
Judgment affirmed, with costs.
Present — Barnard, P. J., Gilbert and Dykman, JJ.Judgment and order denying new trial reversed, and new trial granted, costs to abide event.