The validity of the judgment obtained by plaintiff
against defendant in the New York court, and sued on in this action, is not controverted by defendant. Therefore, under Article IV, section 1, of the Constitution of the United States the judgment when properly authenticated is entitled in the courts of this State to be given full faith and credit. However, in challenging a foreign judgment “defendant has a right to interpose proper defenses; he may defeat recovery by proof of any fraud practiced in obtaining the judgment which may have prevented him from having an adverse trial of the issue ... or by showing want of jurisdiction either as to the subject matter or as to the person of the defendant.” Bonnett-Brown Corp. v. Coble, 195 N. C., 491, 142 S. E., 772. See also Mottu v. Davis, 151 N. C., 237, 65 S. E., 969; S. c., 153 N. C., 160, 69 S. E., 63; Williamson v. Jerome, 169 N. C., 215, 85 S. E., 300. Defendant may also plead as counterclaim payments made since the rendition of the judgment. Roberts v. Pratt, 158 N. C., 50, 73 S. E., 129.
The defense set up by defendant is (1) that the judgment obtained in the New York court was procured by fraud in that plaintiff exhibited hats in court and falsely represented that the hats in question were then in plaintiff’s possession subject to the orders and disposition of the defendant, when in truth and in fact plaintiff had already sold same and received full value therefor, and (2) that plaintiff further perpetrated a fraud on and to the damage of defendant by having sold under execution worthless hats which plaintiff had substituted for the hats involved in the suit in which the New York judgment was obtained.
Admitting the truth of these averments, as we must do upon demurrer in testing the sufficiency of the pleading, the first defense fails in that false testimony given at the trial is “held not to constitute' extrinsic fraud upon which a successful attack upon the judgment can be based,” Devin, J., on defendant’s appeal in Gody v. Hovey, 216 N. C., 391, 5 S. E. (2d), 165, where it is stated that the same rule applies in New York, citing Jacobowitz v. Pierson, 268 N. Y., 130. See also Mottu v. Davis, supra. Furthermore, the alleged false representations were anterior to the entry of the judgment in the New York court, and relate to the merits of the subject matter, as to which inquiry is precluded in suit on such judgment. Land Bank v. Garman, 220 N. C., 585, 18 S. E. (2d), 182, and cases cited.
The second defense is nothing more than an unliquidated claim for damages arising out of an independent tort which cannot be made the subject of set-off or counterclaim. Finance Corp. v. Lane, 221 N. C., *375189, 19 S. E. (2d), 849; McIntosh, N. C. P. & P., page 494, and there is no allegation of payment.
The judgment below is
Affirmed.