p. 571Monroe Miller Company, Resp’t, v. Stokes, App’lt.(New York City Court, General lerm,Headnote
1. Pleadings—Counterclaim.A cause of action for unpaid rent is not the proper subject of counterclaim in an action for conversion of property, unless it arises out of, or is connected with, the subject of the action.
A lien is not counterclaim in an action for the conversion of the property upon which the lien exists.
Appeal by defendant from judgment sustaining demurrer to his counterclaim.
John Delahunty, for app’lt; Shepard <& Prentiss, for resp’t.
The complaint is in tort to recover the value of plaintiff’s office furniture, consisting of seventeen specified chattels alleged to have been converted by defendant. The answer alleges by way of counterclaim that defendant let to plaintiff a certain office room; that plaintiff still owes him $800 for two months rent of same ; that the chattels mentioned in the complaint “ were permitted by the defendant to be placed in said office in consideration of the execution by the plaintiff of the lease of such office, and this defendant has a lien on said chattels and is entitled to hold the same as security for the payment of said rent.” To this counterclaim plaintiff demurred on the grounds that same is insufficient in law on the face thereof; does not arise out of or is connected with the subject of the action, and does not state facts sufficient to constitute a cause of action. This demurrer was sustained and this appeal is from the interlocutory judgment thereon. The facts alleged in this plea labeled counterclaim, are sufficient to constitute only a cause of action on an express covenant to pay rent, and such cause is not the proper subject of counterclaim in an action in tort for conversation of property, unless it arises out of or is connected with the subject of the action. The mere fact that the tenant placed these chattels in the premises
p. 572demised to him by defendant, who converted them to his own use, does not make the landlord’s cause of action for unpaid rent arise out of the tenant’s action in tort for conversion, or connect it with the subject of such action. The allegation that defendant has a lien on the chattels for their owner’s unpaid rei^t, is insufficient in law to constitute a valid counterclaim, for no such lien by a landlord on his tenant’s chattels is authorized by law, and defendant does not set up any facts to show that such lien was provided for by contract, express or implied. And if he did not set up such lien by agreement, it would not be the proper subject of counterclaim. A lien is not a counterclaim in an action in tort for the conversion of the property upon which the lien exists, but constitutes a defense by way of avoidance. 'If defendant had set up facts showing a lien by agreement the same would relate to-plaintiff’s cause of action only as a defense to it, and not as a counterclaim.
Rochester Distilling Co. v.
O'Brien, 72 Hun, 462 ; 55 St. Rep. 149 . Judgment affirmed with costs.
Newburger and McCarthy, JJ., concur.