#### Matter of the Final Judicial Settlement of the Accounts of Ann Miller, as Administratrix, Etc., of Andrew J. Miller, Deceased.

(Surrogate’s Court, Otsego County,

April, 1898.)

Rills and notes — Joint obligation — Counterclaim.

A note in the form:

“April 10, 1894. One day from date for value received, we promise to pay A. J. Miller, or bearer, one hundred and fifty-three dollars, with int.

“ REVI CROUNSE,

“ EMMA CROUNSE.”'

is a joint obligation and cannot be made the subject of a counterclaim, upon the part of the estate of the deceased payee, as against the individual claim of one of the makers against the estate.

*320Proceedings in a Surrogate’s Court for' the determination of the claim of Emma Crounse, presented to the administratrix of the estate and rejected by her. '

S. W. Barnum, for administratrix.

Charles T. Brewer, for Emma Crounse.

Clarence M. Bates, for Samuel Davidson, and others.

J. W. Barnum, for Jacob Kreischer.

Arnold, S.

Emma Crounse, the claimant, was, at the times hereinafter stated, a resident of "the town’ pf Roseboom, Otsego county. In the spring of 1896, she held on the premises occupied by her, an auction, selling her farm stock, hay, etc. At that auction, ■ one. Andrew J. Miller purchased some stock and some hay, the purchase‘"price being $130.82. In May of the same "year, Miller died and Aun Miller, his wife, was duly appointed administratrix of his. goods, chattels and credits, by the Surrogates Court of Otsego county.

During the course of her administration, Emma Crounse presented a claim for the purchase price of the personal property purchased by said Miller at the auction sale above referred to.

This claim was rejected and came on for determination upon the final judicial settlement of the accounts of the administratrix..

The claim presented is fully proven and must be allowed.

The administratrix offers in evidence by way of counterclaim, a note of which the following' is a copy:

“ April 10, 1894. One day from date for value received we promise to pay A. J. Miller or bearer one hundred and fifty-three dollars with int.

> “ Levi Crounse,

> “ Emma Crounse.”

This note is in form the joint obligation of Levi Crounse and Emma Crounse. Daniel on Negotiable Instruments (4th ed.), § 94.-

Can this joint obligation be set up and allowed as a counterclaim against this claim of Emma Crounse in this proceeding? As the matter stands, the administratrix seeks to offset against the claim *321of Emma Orounse a joint obligation against Emma Orounse and Levi Orounse.

It is a well-settled principle of law that a joint debt cannot be set off against the individual debt, and conversely an individual debt cannot be set off against a joint debt. In an action brought by a plaintiff against a defendant upon an individual liability of the defendant, he cannot set up as a counterclaim a joint liability of the plaintiff and some other person.

Within that authority, I do not see how this joint note of Levi Orounse and Emma Orounse can be allowed as a counterclaim against the individual claim of Emma Crounse. Spofford v. Rowan, 124 N. Y. 108.

This view of the matter leaves it unnecessary to consider the admissibility of the evidence of Levi Orounse offered by- plaintiff and also makes it unnecessary to consider upon the merits the ' effect of that evidence. I think it is clearly the duty of the administratrix of this estate to bring an action upon this note against the joint makers Levi Orounse and Emma Orounse.

There is also presented by the administratrix, as a counterclaim, a note for $59, made by Emma Orounse, payable to the order of Andrew *J.*Miller and indorsed by Andrew J. Miller, which is now held and owned by the Rational Central Bank of Cherry Valley.

In settlement of the decree the claim of Emma Orounse will be allowed at $132.80.

The note held by the Rational Central Bank of Cherry Valley may be allowed as a set-off against this claim of Emma Orounse to the extent of the liability of the estate of Andrew J. Miller, upon said note. A decree may be entered accordingly.

Decreed accordingly.