
    William H. Meeks, App’lt, v. James S. Berry, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1.' Pbactice—When coonteb-claim in tobt allowed in an action on a CONTBACT.
    A counter-claim in tort will not be allowed in an action for services rendered upon a contract, express or implied, unless the tort was directly connected with the performance of the services and arose out of the same transaction.
    Appeal from interlocutory judgment overruling demurrer to a counterclaim contained in the answer.
    
      John A. Foster, for appl’t; O. H. Maclin, for resp’t.
   Van Brunt, P. J.

An examination of the pleadings in this case shows that the learned justice in disposing of this demurrer fell into an error in holding that the cause of action set up in the counterclaim arose out of the transactions :set forth in the complaint and is connected with the subject of that action. It will be seen by a brief examination of the complaint and the answer that because of the fact that the claim in the complaint and the counterclaim in the answer related to the same premises, the learned court below ■supposed that they both arose out of the same transaction. It is to be observed however, that the transactions were distinct, and the counterclaim not being upon contract it ■could not be set up by way of counterclaim.

The complaint contains two causes of action; first for •certain legal services performed by the plaintiff for the defendant between the 17th of October 1879, and the 17th of March 1883. in leasing and selling certain property known .as 13 West Fifty-eighth street, and in drawing certain papers in relation thereto. The second cause of action is for services as attorney at law of the defendants rendered upon their retainer from the 17th of March 1883, to the time of the commencement of this action in defending a certain suit brought against the defendants and for his services in drawing and engrossing various instruments, and counsel ‘ ling and advising them. It will be seen that these causes of action are entirely separate and distinct, the second cause of action arising out of a retainer to defend a suit and the services rendered incident thereto, and this is the only retainer which is alleged or referred to in the complaint.

The defendant in his answer admits the retainer but denies the value of the services, and avers that the services alleged" to have been rendered by the plaintiff were in fact rendered by somebody else and paid for to him. The answer then alleges for a further and separate answer and .as a counterclaim that at and during the time the plaintiff was retained by the defendants, he was employed by the •defendants as their attorney and agent to sell certain property known as Xo. 13 West Fifty-eighth street, and was .guilty of misconduct in reference to such employment. This clearly has nothing to do with the services rendered in defending the suit brought against the defendants and it has nothing to do with the cause of section first set up in the complaint which was for services rendered prior to the retainer.

It is true that the premises which formed the basis of the cause of action first set up in the complaint, were the same as those mentioned in the counterclaim, but the services set up in the first cause of action were services in leasing and selling these premises prior to the 17th of March, 1883, to one Walton, and were completed at that time. Whereas the derelictions of duty which are complained of in the counterclaim occurred in the year 1886, in relation to the manner in which the plaintiff acted in selling these premises to an entirely different and distinct purchaser.

It seems to be clear, therefore, that the counterclaim had no relation either to the first or second cause of action set up in the complaint, and being in tort, and not on contract, could not be allowed.

The judgment should, therefore, be reversed and the demurrer sustained, with leave to the defendants to withdraw their answer and amend the same upon the payment of costs of this appeal and of the court below.

Macomber and Brady, JJ., concur.  