1919.] Statement of case. [225 N. Y.] is sufficient to constitute a bar to the maintenance of this action. A demurrer to such defense, therefore, was properly overruled, but as the complaint states a cause of action on contract against the executor, the plaintiff should be permitted to withdraw his demurrer. 3. A demurrer to separate defenses set up in the answer of the defendant executor alleging counterclaims against the plaintiff in favor of said defendant was properly overruled. The complaint alleged a contractual relationship between the plaintiff and said defendant, and a breach thereof by the latter. The counterclaim stated a cause of action on contract existing at the commencement of the action. It was error, however, to grant judgment in favor of such defendant for the amount of the counterclaims. The only question presented by the demurrer was whether or not the counterclaims were properly alleged as such and of the character specified in section 501 of the Code of Civil Procedure. 4. A demurrer to a separate defense contained in the answer of one of defendant assignees which stated not only a cause of action arising out of the transaction set forth in the complaint and connected with the subject-matter of the action, but likewise a cause of action upon contract existing at the commencement of the action, was properly overruled but though the complaint fails to state a cause of action against said defendant, the court was in error in dismissing the complaint as against him and awarding him final judgment on the counterclaim, as he was not at liberty to challenge the sufficiency of the same on the argument of that demurrer. Hull v. Hull, 172 App. Div. 287, modified. (Argued November 14, 1918; decided January 21, 1919.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 8, 1916, affirming a final judgment of Special Term which dismissed the complaint on the merits as to each of the respondents, overruled a demurrer to a separate defense contained in the answer of John Hull, Jr., interposed by plaintiff upon the ground of insufficiency thereof as a defense, and a further demurrer to two additional separate defenses and counterclaims in the same answer, and awarding to John Hull, Jr., affirmative judgment on the counterclaims. Also, overruling demurrer interposed by plaintiff to a separate defense and [225 N. Y.] Points of counsel. [Jan., counterclaim set out in the answer of the defendant Frank Hull, and awarding said defendant affirmative judgment for the amount of the counterclaim. The substance of the several pleadings together with the facts, so far as material, appear in the opinion. Thomas B. Merchant for appellant. The complaint states a cause of action in equity. (Stiebel v. Grosburg, 202 N. Y. 266; Murtha v. Curley, 90 N. Y. 372; Seely v. Seely, 164 App. Div. 650; McHenry v. Hazard, 45 N. Y. 580; Dederer v. Voorhies, 81 N. Y. 153; Ward v. Town of Southfield, 102 N. Y. 287; Becker v. Church, 115 N. Y. 562; Mayor v. Brady, 115 N. Y. 599; Kley v. Healy, 127 N. Y. 555; Stevens v. C. N. Bank, 144 N. Y. 50; Warren v. Union Bank, 157 N. Y. 259.) The defense in paragraph 3 of the answer of John Hull, Jr., is insufficient in law upon the face thereof. (Douglass v. Phenix Ins. Co., 138 N. Y. 209; People ex rel. McEnroe v. Wells, 89 App. Div. 89; Matter of Schnabel, 202 N. Y. 134; Matter of Farley, 91 Misc. Rep. 185.) The counterclaims in the separate answers of the respondents are not, and neither of them is, of the character specified in section 501 of the Code of Civil Procedure. (Morris v. Windsor Trust Co., 213 N. Y. 27; Fulton Co. G. & E. Co. v. Hudson Riv. T. Co., 200 N. Y. 287; Britton v. Ferrin, 171 N. Y. 235; Dinan v. Coneys, 143 N. Y. 544; Rothschild v. Whitman, 132 N. Y. 472; People v. Dennison, 84 N. Y. 272; Sugden v. Magnolia Metal Co., 58 App. Div. 236; 171 N. Y. 697.) Leon C. Rhodes for John Hull, Jr., individually and as executor, respondent. The complaint fails to state a cause of action in equity. (Day v. Sizer, Clarke, 136; Hutchinson v. Brown, Clarke, 408; DeMilt v. Hill, 89 Hun, 56; Long v. Warren, 68 N. Y. 426; Redmond v. Tone, 32 N. Y. S. R. 260; Harlow v. La Brum, 82 Hun, 1919.] Points of counsel. [225 N. Y.] 292; 151 N. Y. 278; Butler v. Viele, 44 Barb. 166; Lawrence v. Foxwell, 17 J. & S. 273; 4 Civ. Pro. Rep. 340; Wood v. Amory, 105 N. Y. 278; Lynch v. Dowling, 1 City Ct. Rep. 163; Francis v. N. Y. & B. El. Ry. Co., 17 Abb. [N. C.] 1; Construction Reporter Co. v. Crowinshield, 16 Misc. Rep. 381.) The complaint fails to state facts sufficient to constitute a cause of action at law against the defendant John Hull, Jr. (Gilbert v. Taylor, 148 N. Y. 298; Sharp v. Rose, 49 N. Y. S. R. 420; 139 N. Y. 652; Chapman v. Forbes, 123 N. Y. 532; Beers v. Strong, 128 App. Div. 20; Conkling v. Weatherwax, 90 App. Div. 585.) The defense contained in paragraph 3 of the answer of the defendant John Hull, Jr., is sufficient in law upon the face thereof. (Smith v. Smith, 79 N. Y. 634; Patrick v. Shaffer, 94 N. Y. 423; Jordan v. Van Epps, 85 N. Y. 427; Matter of Randall, 152 N. Y. 508; Matter of Dollard, 74 Misc. Rep. 312; 149 App. Div. 926; Matter of Carey, 77 Misc. Rep. 602; Matter of Higgins, 81 Misc. Rep. 579; Matter of Delgado, 79 Misc. Rep. 590; Matter of Clyne, 72 Misc. Rep. 593.) The counterclaims contained in paragraphs 7 and 8 of the answer of the defendant, John Hull, Jr., are sufficient in law and of the character specified in section 501 of the Code. (Strough v. Bd. of Supervisors, 119 N. Y. 212; Roberts v. Ely, 113 N. Y. 128; Ross v. Curtiss, 30 Barb. 238; 31 N. Y. 606; Sage v. Culver, 147 N. Y. 241; Zebley v. F. L. & T. Co., 139 N. Y. 461.) Harry C. Walker for Frank Hull, respondent. The counterclaim contained in paragraph 6 of the answer of defendant Frank Hull, is sufficient. (Carpenter v. M. L. Ins. Co., 93 N. Y. 552; Strough v. Board of Supervisors, 119 N. Y. 212; Roberts v. Ely, 113 N. Y. 128; Chapman v. Forbes, 123 N. Y. 532; Code Civ. Pro. §§ 501, 509; Sadlier v. City of New York, 185 N. Y. 408; Coatsworth v. L. V. R. R. Co., 156 N. Y. 451.) [225 N. Y.] Opinion, per HOGAN, J. [Jan., HOGAN, J. The complaint alleges that plaintiff and the defendants are brothers, sons of John Hull, Sr., who died June 25th, 1897, leaving a last will which was duly admitted to probate, the issuance of letters testamentary thereon to defendant John Hull, Jr., the executor named therein, who duly qualified. That under the terms of said will plaintiff was given a residuary interest of oneseventh in said estate which amounts to more than $1,478.25, no part of which has been paid; that on August 18, 1899, plaintiff at the request of John Hull, Jr., executed, acknowledged and delivered to the latter an assignment, under seal (set out at length in the complaint), which in effect recites that for a valuable consideration paid plaintiff by James Hull and Frank Hull, plaintiff assigned to them all right, title and interest he had in the estate of John Hull, Sr., as legatee or otherwise and authorized the assignees to execute and deliver all vouchers, receipts, etc., in satisfaction thereof. That defendant John Hull, Jr., fraudulently represented to plaintiff that it would be for plaintiff's interest to execute and deliver said assignment, and promised to hold the same in escrow until plaintiff authorized a delivery thereof and in reliance upon such representations the assignment was delivered. That plaintiff never authorized a delivery of the assignment and same was never delivered; that the assignment was without consideration. That James Hull and Frank Hull, defendants, never requested or authorized John Hull, Jr., to procure such assignment for them or either of them. That defendants James and Frank Hull were likewise residuary legatees under the will of their father equally with plaintiff; that defendant John Hull, Jr., as executor has paid to James and Frank Hull the sum of $2,295.58 and $2,398.75 respectively or upwards. That on or about April 13, 1914, without the knowledge or consent of plaintiff, defendant John Hull, Jr., filed his account as executor, together with 1919.] Opinion, per HOGAN, J. [225 N. Y.] the assignment in Surrogate's Court and in his account set forth that a portion of the payments therein made to James and Frank were made pursuant to said assignment; that the sums so paid to them exceeded the amount to which they were entitled under the will and upon such accounting the executor was surcharged for excess payments. That under said assignment defendant John Hull, Jr., claims he paid to James and Frank the sum of $1,478.25, being part of the money to which plaintiff is entitled. The demand for judgment was for a cancellation of the assignment; judgment against John Hull, Jr., for $1,478.25 with interest and in the event of failure to collect the amount of same from him, judgment against the defendants James Hull and Frank Hull for the same amount. The defendant John Hull, Jr., denied the material allegations of the complaint, save the relationship of the parties, death of John Hull, Sr., probate of his will, etc. For a third separate defense John Hull, Jr., alleged that on May 5th, 1914, as executor, etc., of the will of John Hull, Sr., he filed his final account as executor in the Surrogate's Court together with a petition duly verified praying that his accounts as executor be judicially settled and for his discharge; that a citation was duly issued thereon directed to the plaintiff amongst others, which was personally served on plaintiff; that plaintiff at all times between the date and delivery of the assignment set out in the complaint, August 18th, 1899, and the accounting of defendant as executor and the decree of the Surrogate's Court entered thereon, had actual knowledge of the delivery of the assignment to and reliance of all of the defendants thereon and of the payment made by him as executor pursuant to said assignment to the other defendants of the legacy to plaintiff under the will of his father. The making and entry of a decree of the Surrogate's Court ratifying and |