Brown v. Buckingham , 21 How. Pr. 190 ( 1860 )

Bonney, J.

The first point made by the plaintiffs, on their demurrer, is that a counter-claim cannot be pleaded in an action for the possession of personal property.

The Code, in general terms, and without limitation as to the nature of the action, provides (§§ 149, 150) that the answer may contain a statement of any new matter constituting a counter-claim, which is a cause of action, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiffs’ claim, or connected with the subject of the action. This language is sufficiently comprehensive to include the present case, and permits the pleading of a counterclaim in this action; and although the action of replevin, or for the possession of personal property, as it is now named, is considered as founded upon tort, I can see no good reason for holding that all claims of either of the parties against the other, arising out of the transaction set forth in the complaint, and made the foundation of the plaintiffs’ claim therein, cannot be adjusted and determined in one suit of this form of action, as well as in an action properly and technically on contract. And such I understand to be the effect of the decisions of this subject.

But the plaintiffs insist that this answer does not state facts which show that the alleged counter-claim arises out of the transaction set forth in the complaint; and this point, in my opinion, is well taken. The answer does not state that the silk, sold by defendant to plaintiffs, was the same silk of which plaintiffs now seek to recover the possession; or that it was sold or delivered under any contract which included or applied to the silk demanded by plaintiffs ; nor set forth any facts connecting in any way the transaction stated in the complaint, with the supposed cause of action stated in the answer. The averment is, that the sale and delivery of silk by defendant to plaintiffs, alleged in this answer, arose out of the contract and transaction set forth in the complaint. This may be so, but no physical fact, capable of being established by evidence, is stated which shows it, and the averment is of a conclusion of law. (Van Shaick a. Winne, 16 Barb., 89; Jones a. Phoenix Bank, 8 N. Y. (4 Seld.), 235.)

For this reason judgment must be rendered for plaintiff on the demurrer, with leave to defendant to amend his answer in twenty days on payment of the costs to the demurrer.