This case is submitted upon the argument of the appellant only, the respondent’s counsel having presented no points.
We think the judgment must be reversed. The action was brought by the plaintiff, as assignee of a claim for work, labor, and materials done and furnished for the defendant, by one Herbert. On the trial, Herbert (the assignor) was examined as a witness on behalf of the plaintiff.
He testified to the performance of the work and the furnishing of the materials, and stated the value or amount thereof. After testifying, that the whole amount of the work and mate*539rials, which he had furnished and performed for the defendant, was $436 09, he added, “ $350 of that amount has been paid ; $86 09 is now due.”
The defendant then offered himself as a witness to show what payments he had made to Herbert, and the justice excluded him.
In this we think there was error. By the 399th section of the code of procedure, when the assignor of the plaintiff is examined on his behalf, the defendant may offer himself as a witness to the same matter, and when so offered, he must be received. The court have no discretion to exercise.
Had the plaintiff confined his examination of the assignor (Herbert) to proof of the performance of the work, &c., and its value or amount, the ruling of the justice would have been correct. In such case, an offer by the defendant, expressly limited, as this was, to proof of payments, would not have been offering himself as a witness to the same matter, but to other and new matter, not going at all in denial of the performance of the work, &c., to which the assignor had testified.
But the plaintiff did not stop with proof of performance, &c. The assignor, upon the plaintiff’s examination, testified to the amount of payments, and that the balance, $86 09, was due. To disprove this, he, by such examination, made the defendant competent, and the offer was, to show what payments had in fact been made to Herbert. This was “the same matter” to which the assignor had been examined; and the terms of § 399 are too explicit, we think, to leave it doubtful whether the justice ought not to have allowed him to testify.
The question of jurisdiction was not raised before the justice on the trial; and if it had been, the defendant’s objection could not be sustained. This was not a case of mutual accounts, but simply a claim for a balance due for work, &c., upon which payments had been made. And although the aggregate of the work, &c., amounted to over $400, that did not create a case of mutual accounts within the meaning of the statute. Payments on a claim are not, in any proper 'sense, items of an “ account” in favor of the defendant. The account is on one side only, within the meaning of the statute, though it *540is reduced by payments. It is otherwise, when the defence seeks to set off items arising in a course of mutual dealing, which in themselves constitute an affirmative claim in the defendant’s favor, and which have not been specifically appropriated, as payments, to the reduction of the claim of the plaintiff. (Bowditch v. Salisbury, 9 Johns. R. 365 ; ex parte Mills, 10 Wend. 557 ; and Matterson v. Bloomfield, ib. 555.)
The other questions raised by the counsel for the appellant, have no foundation in the case exhibited by the return. There was no refusal to swear any witness ; and no receipts or papers appear annexed to the return, nor to have been given in evidence, except such as the witness stated, are included in the amount credited to the defendant. If the return is in these respects defective, it should have been amended before the hearing of the appeal.
But, upon the ground first mentioned above, the judgment must be reversed.
Judgment reversed.