majority">Ingraham, First Judge.

This action was for goods bold and delivered. The defendant pleaded, among other things, a *435counter-claim of $225 due from tbe-assignors of plaintiff to them,, at tbe time of tbe assignment, November, 1855.

Upon tbe trial, it appeared that the defendant bad recovered against tbe assignors of tbe plaintiff a judgment jfor the same counter-claim on tbe 18th of December, 1855, which action was brought after jhe assignment to tbe plaintiff.

The defendants then offered evidence of tbe original claim for which such judgment bad been recovered, which was objected to by the plaintiff, and the objection overruled by the court. Evidence was then received of such counter-claim.

After a recovery of a judgment for that counter-claim against the plaintiff’s assignors, the claim became merged in the judgment, and could not any longer be used as evidence of indet^ edness. The judgment, then, was the only indebtedness of Bates & Franc to Goddard, and the original claim could not form the basis of a counter-claim. The justice ruled otherwise, and I think he erred in so ruling.

Upon that trial the defendant (then plaintiff) objected to the set-off, offered by Bates & Franc, of this claim now in suit, upon the. ground that the same had been assigned to Ives, and could not be used as a counter claim. The same was excluded, and properly, as a defence on the original trial. The defendant now objects to the plaintiff’s recovery, upon the ground that the claim sued on should have been set off in the other action.

Where a claim has been thus properly excluded, because it is not legally a set-off in the action, to the plaintiff’s claim, such trial forms no bar to another action. Beebe v. Bull, 12 Wend. 504.

It would be a monstrous proposition, to hold that a plaintiff" may exclude a counter-claim upon the ground that the same had been assigned to a third person, and then, when such third person brings his action to recover it, to say that it should have been allowed as a set-off in the first action, although properly assigned before that action was brought.

Judgment reversed.

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