COUNTER-CLAIM. A liberal practice in troduced by the reformed codes of procedure in many of the United States, and compre hending RECOUPMENT and Sur-oFF, q. v., though broader than either.
The New York code thus defines it: The counter-claim must tend, in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: 1. A cause of action arising out of the contract or transaction, set forth in the complaint as the foun dation of the plaintiff's claim, or connected with the subject of the action.
2, In an action on contract, any other cause of ac tion on contract existing at the commencement of the action. N. Y. Code, 1889, 501. See National Fire Ins. Co. v. McKay, 21 N. Y. 191 ; Waddell v. Darling, 51 id. 327 ; Smith v. Hall; 67 id. 48 ; Elwell v.. Skiddy, 77 id. 282; Balton v. Baliou, 78 id. 325; Cook v. Jenkins, 79 id. 575; Coffin v. McLean, 80 id. 560; Ward v. Craig, 87 id. 550 ; Clapp v. Wright, 21 'Hnn (N. 8.) 240 ; Dietrich v. Koch, 35 Wis. 618 ;
Devries v. Warren, 82 N. C. 356; Howe Mach. Co. v. Reber, 66, Ind. 498 ; Brady v. Brennan, 25 Minn. 210.
By such statutes when a counter-claim is established the defendant may recover in the same action the amount by which his claim exceeds that of the plaintiff. A question as to which the cases vary in result is the ef fect upon the jurisdiction when the counter claim exceeds the limit of the court. Some courts hold that the jurisdiction is not oust ed by reason of excess in the amount of the counter-claim; Howard Iron Works v. Ele vating Co., 176 N. Y. 1, 68 N. E. 66; aliter, Haygood v. Boney, 43 S. C. 63, 20 S. E. 803; but it is said that the majority'.of the cases deny the right in such case to file the coun ter-elaiin ; 17 Ham L. Rev. 350 (citing Gris wold v. Pieratt, 110 Cal.' 259, 42' Pac. 820, and Almelda v. Sigerson, 20 Mo. 497), where that view is approved.
A counter-claim is a matter which is capa ble of use as the basis of a judgment against the plaintiff, and, of course, may be used as a set-off; Marconi Wireless Telegraph Co.
of America v. Electric Signaling Co., 206 Fed. 295.