Much difficulty has arisen, and the cases are somewhat conflicting, as to what constitutes a counter-claim, requiring a reply under § 153 of the Code. The cases, however, have, I think, settled down to the conclusion that when the defendant has a cause of action against the plaintiff, upon which he might have maintained a suit, such a cause of action is a counter-claim. The parties then have cross demands. (12 How. 811.) Section 150 enacts, that the counter-claim must be one existing in favor of a defendant against a plaintiff, and affirmative relief may now be granted under § 274, and claims, either legal or equitable, or both, are now pleadable in the nature of set-off, without regard to the form of the action. (15 Barb. 365.) A counter-claim is also a set-off as called under the previous practice.
The defendant here seeks to recoup, or set-off, as in Reab agt. M'Allister, (4 Wend. 483—same case in error, 8 id. 109,) where the court decided the case came within legislative definition. (See Code, § 150, sub. 1; 15 J. R. 358, 395.)
In Gage agt. Angell (8 How. 335-337) it was well said that counter-claims must exist at the commencement of the action, which must be one arising from contract, and it may be (under the first subdivision of § 150) exist in a cause of action arising out of the contract, or transaction, set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.
That the answer in this case sets up a counter-claim so as to require a reply, is, I think, fully established in the following cases: Silliman agt. Eddy, 8 How. 122; Putnam agt. He Forest, id. 146 ; Simpson agt. Loft, id. 234; Davidson agt. Kensington, 12 id. 310, and see 9 How. 263 ; 20 Barb. 477; 2 Duer, 639 ; *2506 How. 433; 4 Sanf. 147; 8 How. 441; 1 Whit. Pr. 506, 507, 508.
The defendant here claimed affirmative relief, growing out of the cause of action for breach of warranty in the quality of the article sold, and for which he could have maintained an action. His answer setting it up required a reply, and none having been interposed, tire justice did right in adjudging it to be admitted, and his judgment should be affirmed.