¶1This is an appeal from an order denying defendant’s motion to vacate an attachment. The motion is made on affidavits, setting forth that at the time the cause of action was assigned to the plaintiff herein, another action was pending in the Supreme Court, in which the defendant herein was plaintiff and the assignors of the plaintiff herein were defendants, for damages growing out of the same transaction from which the cause of action herein arose; and that, therefore, there was a counter-claim existing against the plaintiff’s assignors, at the time of the issuing of the attachment herein, for an amount in excess of the claim in the case at bar, as in the Supreme Court action the claim was something over nineteen thousand dollars, while in the case at bar the amount claimed is less than five thousand dollars.
¶2The plaintiff, as the assignee of the claim, stands in exactly the same position as his assignors would have stood, had they not assigned the claim, but been themselves the plaintiffs in this action. If a counter-claim existed against plaintiff’s assignors, at the time of the *281assignment of the claim to plaintiff, the latter took the claim subject to that counter-claim (see section 502 of the Code).
¶3Had the assignors been the plaintiffs in this action, instead of their assignee, could the defendant have set up the demand, which constitutes the cause of action in the Supreme Court case, as a counter-claim in this action ? We think not.
¶4Section 495 of the Code especially provides, in subdivision 3, that if it appears on the face of the counter-claim, demanding an affirmative judgment, that there is another action pending between the same parties for the same cause, the counter-claim would be demurrable. And if that fact should not appear on the face of the counter-claim, it could, nevertheless, be made available as a defence in the reply. See Ansorge v. Kaiser, 22 Abb. N. C., 306.
¶5It, therefore, appears that the defendant could not set up a counter-claim in this action, even if the assignors were the plaintiffs, instead of their assignee. And certainly, if the defendant has no counter-claim against the plaintiff’s assignors, he certainly has none against the plaintiff himself, the assignee of the claim.
¶6Since the defendant could not avail himself of his demand against the plaintiff’s assignors as a counter-claim in this action, the order appealed from must be affirmed, with ten dollars costs, and disbursements.
¶7Freedman, P. J., and McAdam, J., concurred.