Majority
p. 921John Quinn and James Quinn, Copartners, etc., Appellants, v. James O’Reilly, Respondent.
Order of the County Court of Kings county reve’-sed, with ten dollars costs and disbursements, and order directed for judgment allowing plaintiffs’ demurrer to defense and counterclaim pleaded in defendant’s amended answer, with costs, with leave to defendant to amend the amended answer within twenty days on payment of costs. The defendant’s defense is obviously insufficient in law upon its face. Defendant’s counterclaim is not of the character specified in section 501 of the Code of Civil Procedure. It states, if anything, a cause of
p. 922
action in tort which does not arise out of the contract or transaction set forth in the complaint as the foundation of plaintiff’s claim, and which is not connected with the subject-matter of the action. Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.