D'Auxy v. Dupre — 47 A.D. 51

Majority

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Arthur, Duke D’Auxy, Appellant, v. Ovide Dupre, Respondent.

Headnote

Attorney and client—action to set aside an, assignment of a claim procured hy fraud — a counterclaim for services is not authorized.

A complaint which alleges that the plaintiff, in reliance upon fraudulent representations made by the defendant, an attorney, assigned to him a claim which the plaintiff had employed him to collect, and that the defendant collected the claim but never accounted to the plaintiff for the same, and which demands as relief that the assignment be set aside and that the defendant be compelled to account for the money received thereunder, states a cause of action in equity to set aside an instrument procured by fraud, and incidentally to obtain, by an

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accounting, the proceeds of the fraud, and the defendant is not entitled to set tip therein an independent cause of action, consisting of a counterclaim for services rendered hy him to the plain tiff.

Appeal by the plaintiff, Arthur, Duke D’Auxy, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the couiity of New York on the 4th day of October, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, overruling his demurrer to the counterclaim of the defendant.

E. F. Bullard, for the appellant.

Andrew F. Murray, for the respondent.

The complaint alleged that the plaintiff employed the defendant as his attorney to look after his interests in certain matters, and that the defendant, by false and fraudulent representations, induced the plaintiff to assign to him all his interest in the claim which the defendant had been retained to collect. The. false and fraudulent representations are set out in the complaint, and it is alleged that they were made with the intention of deceiving and misleading the plaintiff and with the knowledge, on the part of the defendant,.that they weie not true; and that the plaintiff relied upon them and executed the assignment on the faith of them. It is alleged further that the defendant collected the said claim and that he never accounted to the plaintiff for the amount so received; and the relief asked is that the assignment may be set aside and the defendant be compelled to account for the money he received thereunder.

The answer, besides stating various defenses, set up a counterclaim for services which the defendant rendered to the plaintiff, from time to time, for which he asks judgment. To this counterclaim the plaintiff demurred, and from the order overruling this demurrer this appeal is taken.

The counterclaim set up is not a cause of action arising out of the transaction set forth in the complaint, or one connected in any way with that cause of action, but it is an independent cause of action existing in the defendant at the time of the beginning of this suit. In that case the countérelaim can only be interposed in an action on

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contract. (Code Civ. .Proc. § 501.) But the cause of action here is not upon contract. It is purely one in equity to set aside an instrument procured by fraud and incidentally to obtain from the defendant, by an accounting, the proceeds of that fraud.

. The demurrer to the counterclaim, therefore, was well taken and should have been sustained.' The interlocutory judgment must, therefore, be reversed and judgment entered upon the demurrer in favor of the plaintiff, with costs.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and judgment ordered on the demurrer in favor of plaintiff, with costs.