Majority
p. 100JOHN LEHMAIR et al., Plaintiffs and Respondents, v. ALMON W. GRISWOLD, Defendant and Appellant. Before Freedman and Speir, JJ. Decided December 6, 1875.
Headnote
ACTION, CHARACTER OF.Where the summons is for relief, and the complaint alleges a conversion of property, the character of the action is determined by the complaint, and is an action for a tort.
A counter-claim in such an action to be available, must arise out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or it must be connected with “the subject of the action.”
The words “ the subject of the action ” mean “the facts constituting plaintiff’s cause of action ” (Chamberet v. Cagney, 2 Sweeney, 385).
Appeal from order of special term sustaining demurrer to counter-claims contained in answer.
p. 101
A. Heydenreich, attorney for appellants; Chas. Lee Clark, of counsel.
S. Kauffman, attorney for respondents ; Lewis Sanders, of counsel.
The summons is for relief, and the complaint is in tort, alleging a conversion of two sums of money. For the purposes of this appeal, the character of the action is determined by the complaint.
The counter-claims demurred to, are, therefore, not available in this action under § 150 of the Code.
They do not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor are they connected with the subject of the action. The words “the subject of the action” mean “the facts constituting plaintiff’s cause of action” (Chamberet v. Cagney, 2 Sweeny, 385 ).
The order appealed from should be affirmed, with costs.
Speir, J., concurred.