In an action upon a draft, or chock, for $3,168, the defendant, in his answer, alleged that the chock was given in payment of certain property purchased by him from the plaintiff, and warranted by the latter to bo of a certain quality; averred a breach of the warranty, and claimed to recoup $500 damages therefor.
JMd — a proper case for an order, under § 214 of the Codo, directing the defendant to satisfy part of plaintiff’s claim admitted to be due.
Buie 35 of the court, allowing twenty days for the payment of costs, or the performance of any condition imposed by an order, has no application to such an order, which may be enforced cither as a judgment or as a urovisional remedy.
*550Appeal from an order at special term, directing the satisfaction of part of plaintiff’s claim. The action was upon a draft or check for $3,768. Tlio answer avérred that the check was given in payment for certain hogs, which were warranted to be of good quality; that they were in reality of less value than represented, and claimed to recoup as set-off $500 damages for'the breach of warranty. The plaintiff moved, at special term, under’ § 244 of the Oode, for' an order requiring the defendant to satisfy the elaim of the plaintiff to the extent of $3,268.75, arid interest. The motion was granted, and the defendant appealed.
D. P. Wheclen, for the appellant.
PQprepont and Stanley, for the respondent.
— The order appealed from was properly made. The.defendant admitted, by his answer, that the sum directed to be paid by the order was due to the plaintiff. No other construction can properly be given to the answer. The 35th rule of the court, relied on by the defendant, has no application to such orders. They may be enforced as a judgment or provisional remedy. § 244.
Order appealed from affirmed, with costs.
1 Hilt. 549
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