¶1This is an action to recover the balance of an installment of money, alleged to be due upon a promissory note. The defendant answered, and, among other things, set up as a counter-claim a demand against the plaintiff, riamely, a promissory note which, it appears by the answer, the defendant purchased after this action was commenced. The plaintiff not having replied to the new matter constituting the supposed counter-claim, the defendant moved for judgment as provided by section 16, chap. 125, R. S. The court denied the motion, and from that order this appeal is taken. The order must be affirmed. Nothing is clearer than that the counter-claim specified in subdivision 2 of section 11 of the same chapter, must be one existing in favor of the defendant and against the plaintiff at the time the action is commenced. This is not such a counter-claim, and, by the very authorities cited by counsel for the appellant, it cannot be sustained. Van Valen v. Lapham, 13 How. Pr. R., 240; Rice v. O’Connor, 10 Abbott, 362; Chambers v. Lewis, 11 id., 210, The action being to recover the first installment, which the defendant promised to pay, the counter-claim is not one arising out of, or connected with, this cause of action. The proviso or condition of the note sued on, as to the discharge of the mortgage by which it appears that the note set up as a counter-claim is secured, relates only to the other $600, or second installment, which was not due at the time this action was commenced.
¶2By the Court. — Order affirmed.