p. 469William E. Schaefer, Respondent, v. The Empire Lithographing Company, Appellant.Headnote
Conversion of goods stoi'ed— a counterclaim for storage is not available.In an action brought for the conversion of property resulting from its alleged wrongful sale and disposition by the defendant after it had been stored with ' him, a demand for the value of the storage' is not a proper subject of counterclaim. It does not arise in the same' transaction as that from which the plaintiff’s claim springs.
Appeal by the defendant, The Empire Lithographing Company, from an. interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of’ Queens on the 26th day of November, 1897, upon the decision of the court rendered after a trial at the Queens County Special Term,; sustaining the plaintiff’s demurrer to the second separate and distinct defense contained in the amended answer of the defendant and therein designated as a counterclaim to the plaintiff’s cause of action, and awarding costs to the plaintiff against the defendant.
Edgar J. Lauer \ALortimer Stiefel with him on the brief], for the appellant.
Thomas Abbott McKennell, for the respondent.
The complaint is plainly in tort for the conversion of the property, and not on contract for a breach of the agreement for storage. A demand for the value or price of the storage is not a proper counterclaim in such an action. It does not arise from the same transaction as-that from which the plaintiff’s claim springs. The plaintiff’s cause of action. is based on the sale and disposition of the property by the defendant. The defendant’s claim is- founded! on its services in storing the property previous to the time of the alleged conversion. Plainly, the storage of the property before it was sold and the sale, of the property were different transactions..
The interlocutory judgment appealed from should be affirmed, with costs.
All concurred.
■ Interlocutory judgment affirmed, with costs.