
    CHARLES FINKELMEIER and another, Executors, etc., Respondents, v. HESTER BATES and others, Appellants.
    I. Counter-claim—Tort to Contract.
    
    1. Landlord and Tenant.
    
      (a) In an action against a tenant after his dispossession for rent, accrued prior thereto, he cannot counter-claim damages arising from a tortious withholding by the landlord, having its inception subsequent to the dispossession, of personal property remaining in the premises after the dispossession.
    II. Pleading.
    
    1. Tortious taking or withholding, when not pleaded.
    
      
      (a) A pleading which alleges that “A. took possession of . . . . (certain chattels) and has detained and kept the same, and agreed to pay whatever the same were reasonably worth, but has not paid for the same, and that the same are reasonably worth the sum of $-” does not state a cause of action, or a counterclaim, in tort.
    III. Lessor and Lessee.
    
    1. Implied promise to pay for appliances put in by tenant, WHEN NOT RAISED BY THE LAW.
    (a) S. leased two certain lots from J. covenanting to erect there on a building of a certain description. The lease provided that at the expiration of the term, the building was to belong to the lessor upon payment of half of its appraised value, or the lessor might give a new lease at an appraised value, and that the building should belong to the lessor at the end of that lease. S., at the same time, leased from another party certain lots, forming with the first one an L. This lease contained precisely the same covenants as the.one from J. S. erected a building covering all the lots. He planned the building, and provided it with certain appliances, e. g., an elevator, a. steam heating apparatus, etc., part being in first set, and a part in the second set of lots. These were in the building when it was accepted by the tenant, were always used by the various sub-tenants, were substantially attached to the building, and cannot be removed without considerable injury. The assignee of S. mortgaged the land to B. The appliances were not mentioned in the mortgage. Afterwards, B. foreclosed and bought in. Afterwards, Mrs. S. H. Jewell, to whom J. had devised one of the lots leased by himtoS., in connection with the owner of the other lot dispossessed B., and under the warrant of dispossession, they were put into possession of the premises with the said appliances thereon ; and they made leases, including the use of the appliances, to persons who as sub-tenants were in possession at the time of the dispossession.
    
      Held,
    
    1st, that the law would not imply a promise by the lessors or those claiming under them, to pay the reasonable value of the appliances;
    2nd, if there was an implied contract to pay, it was a joint one of Mrs. Jewell and the owner of the other lot; and therefore a cause of action on it could not be counter-claimed against a cause of action which only Mrs. Jewell had.
    
      2. Tort-feasor, as to appliances, when lessor not.
    
      (a) In the case above put, even conceding that the appliances did not constitute part of the building, the mere taking possession of them by the lessor with the building, she not disposing of them, but leaving them in the possession of the sub-tenant.
    Before Freedman and Russell, JJ.
    
      Decided December 4, 1882.
    Appeal from judgment entered upon .the decision of the court at special term.
    The facts sufficiently appear in the opinion.
    
      Edward Van Ness, attorney and of counsel, for appellants; on the question determined by the court urged:
    That the boiler, engine, hoistway, &c., were chattels for the temporary convenience of tenants is manifest, and as such belong to the lessee and his assigns (Potter v. Cromwell, 40 N. Y. 287; Voorhees v. McGinnis, 48 Id. 278). As between mortgagee and mortgagor, they passed to the defendants on foreclosure (Ewell on Fixtures, 275, and note; Taylor L. & T. §§ 544,545). It is immaterial to consider what may be the rule in other cases, for in this what should belong to the lessor and what should belong to the tenant was defined by the lease. The building built by the lessee was the joint property of the landlord and tenant, and what was not part of the building as between lessor and lessee, belonged as a personal chattel, to the lessee or his assignees. The answer alleges that the plaintiff agreed to pay whatever the same were reasonably worth. No damages are demanded. The defendant construes the act of the plaintiff most favorable to her, namely, that she did not intend any wrong, but intended to pay. Including the chattels in the lease, is not the appropriation complained of, but the evidence of it. It shows that the plaintiff regarded them as chattels, and as her own property, a construction we have adopted, and demand pay for them. “ With the use of the machinery and elevator now in said building,” the lessees agree “ also to put the machinery now in said buildings in good running order, and the parties of the second part hereby agree “ that if they run the machinery and elevator in said premises they will make all necessary repairs to the same at their own expense, &c.” “ And upon the termination of this lease they will surrender said machinery and elevator, &c.” The re-entry on the part of the lessor was not tortious so far as the possession of the chattels is concerned, they being in the building. But the plaintiff’s testator being in possession of the chattels of Bloomfield, an implied assumpsit arose instantly on her assuming ownership of the chattels to pay what the property was reasonably worth. It is well settled that where trover would lie an action can be maintained on an implied assumpsit for goods sold and delivered (Burley v. Taylor, 5 Hill, 583, opinion by Cowen, J. ; Chitty on Contr. 10 Am. ed. 21, note; Butts v Collins, 13 Wend. 139, 154). The demand passes to executors, and is assignable (McKee v. Judd, 12 N. Y. 622). If the act of the plaintiff is susceptible of two constructions, the option is with the lessees to place such construction on the lessor’s act as she please (Andrews v. Artisans’ Bank, 36 N. Y. 298). In Peiser v. Stern, 1 Hilt. 86, the defendant waived his remedy on the tort but not the tort itself. He asked damages. In 4 Keyes, 335, a judgment founded upon a tort was counter-claimed. Money lost in gambling may be counter-claimed (McDougall v. Walling, 48 Barb. 364). The answer in this case is within the rule stated in Coit v. Stewart, 50 N. Y. 17; Berrian v. Mayor, &c., 15 Abb. Pr. N. S. 207.
    
      Richard L. Sweezy, attorney, and of counsel for respondents, urged:
    I. The alleged counter-claim is not a “ cause of action in contract,” but on a tort, and cannot be set up in this action (Code, § 501). II. The elevator, engine, boiler, and heating apparatus are part of the realty, and could not be removed by defendants (McRea v. Cent. Nat. Bk., 66 N. Y. 489).
    III. Defendants do not show facts amounting to a conversion of this alleged personal property.
    IV. Only part of these alleged fixtures are on our premises. If we have converted them, we did it jointly with the other owners (see lease), and any implied promise growing out of the conversion is a joint promise of all the owners. If defendants sue on the tort, they can sue us separately, but if they sue on the implied joint promise, they must join all the owners in their action. A defendant cannot counter-claim a joint cause of action against the plaintiff and other persons not parties to the action (Code, § 501),
   By the Court.—Freedman, J.

This action was brought by the devisee of a lessor, against the assignees of the lessee to recover for rent and taxes. During its pendency the devisee died, and the action was continued, first by her temporary administrator, and afterwards by the present plaintiffs as her executors.

The defendants defended as to the taxes for 1879, and the quarter’s ground-rent due November 1, 1879. As to these items, they alleged that before the same became due, they had assigned the lease. They also interposed counter-claims for one-half the value of the building, and the value of the elevator, engine and boiler, on the theory that they had subsequently taken a re-as-. signment of the lease.

The court below dismissed the counter-claims, and gave judgment for the plaintiffs for the full amount claimed.

Afterwards, the plaintiffs consented, that the disputed items of plaintiffs’ claim be stricken out, and an order was entered, amending and reducing the judgment accordingly.

The right of the defendants to recover half the value of the building, was passed upon and denied by the general term of this court, in the case of Johnston against these same defendants (48 N. Y. Superior Ct. 180).

The only question, therefore, to be determined upon the present appeal, is as to the correctness of the decision of the court below, dismissing the counterclaim for the value of the alleged personal property. The action being on contract, viz.-, for rent and taxes, the counter-claim is not available as such, if founded on an independent tort. From the manner in which it was pleaded, it is not clear, that the pleader intended to rest it on such a foundation. It is alleged, that the plaintiffs’ testatrix took possession, and detained the said personal property, but it is not alleged, either in terms or by implication, nor can the legal inference be drawn from the language used, that the taking of possession or the detention was wrongful. ¡Nor were any damages demanded. The allegation is, in substance, that the plaintiffs’ testatrix took the-property, detained it, and agreed to pay its reasonable value, but failed to do so. The question of pleading must therefore be determined, in favor of the availability of the counter-claim as one on contract.

The evidence, however, given at the trial, showed that in fact there was no agreement to pay,' and consequently the defendants were, and are left to rely on an implied promise.

The question then arises, whether such an implication results as matter of law from the facts of the case, and if it does, whether it results in such a way that under our system of practice it can constitute the basis of a counter-claim, to the cause of action set forth in the complaint.

The facts are substantially as follows : in November, 1866, Charles W. Jewell, the owner of the lots of ground, known as Nos. 109 and 111 West Broadway, in the city of New York, leased the same to one David C. Sturges, for the term of twenty-one years at the rent of $3,000 per annum, and the lessee to pay the taxes. The lessee also covenanted to erect upon the demised premises, a first-class commercial building, not less than five stories high, and to cost not less than $30,000. At the expiration of the said term, the building was to be appraised, and was to belong to the lessor upon payment of one-half of the appraised value; or, the lessor might give a new lease at an appraised rental, and at the expiration of the second term, the building should belong to the lessor.

By lease bearing even date, and containing precisely the same covenants and provisions,the lots Nos. 3, 5 and 7 White street, belonging to Messrs. Johnston, and forming an L with Mr. Jewell’s lots, were also leased to Mr. Sturges.

Thereafter one Walter Jones became the assignee of said leases, and entered into possession. As such, he erected on the premises a building of the character called for, which was accepted by the lessors, as a performance of the covénant on the part of the lessee to build. The building is six stories high, and covers the five lots. It was planned for, and provided with, an elevator and steam-heating apparatus, and an engine to run the elevator, and a boiler to supply the engine and the heating pipes. These appliances were in the building at the time it was accepted by the lessors, and have always remained there, and have always been used by the various sub-tenants who occupied the building. They are substantially attached to it, and cannot be removed without considerable injury. First-class commercial buildings in the city of New York,- of the size and character of the building referred to, are oftener supplied, than not supplied, with a steam elevator and a steam heating apparatus.

In 1871, after the completion of the building, Jones mortgaged the leases, and leasehold premises, and his interest in the building to the defendants, who after-wards foreclosed, bought in, and entered into possession. The elevator, engine and boiler, were not mentioned in the mortgage, and consequently, the defendants only obtained them upon the theory that they were part of the building.

On October 10, 1871, Charles W. Jewell died, and by Ms will, devised the lot No. Ill West Broadway, being the northerly half of the premises described in his lease to Sturges, to Selena H. Jewell, the plaintiffs’ testatrix.

In December, 1879, Mrs. Jewell, in conjunction with the owner of the lot No. 109 West Broadway, took possession of the demised premises, by virtue of a warrant, duly issued under the statute relative to summary proceedings to recover the possession of lands ; but they did not disturb the actual occupancy of the sub-tenants. From them, they merely took leases to themselves. So far as the elevator, engine, boiler and heating apparatus stood upon the premises thus recovered, they were also taken possession of. But from the mere taking of these, articles,. under the circumstances they were taken, the law does not imply a promise on the part of Mrs. Jewell, to pay their reasonable value.

Only a portion of the said articles were on her premises. If she converted them, she did it jointly with the other owner, and any implied promise growing out of the conversion, would be-a joint promise of both.

In so far, therefore, as the defendants’ counterclaim is based upon an implied, contract to pay, it cannot be maintained in this action, because it rests on a joint cause of action, against Mrs. Jewell and another person, not a party to the action.

It is only as a tort-feasor, that she could be proceeded against separately. But, in that case, the defendants would have to rely and proceed on the tort, and that, again, they cannot do in this action.

Moreover, the evidence does not even show she was a tort-feasor. It can hardly be controverted, though it is not necessary so to decide, that the said appliances were designed and always considered, by all parties, to be parts of the building, and that, if the defendants had chosen to perform the covenants of the lease, they would have been entitled at the end of the term, to be paid for them as parts of the building. It is not the usual case, therefore, between landlord and tenant, where the tenant hires a building, and puts in machinery for the purposes of a personal business carried on by him, without being -under obligation to the landlord so to do. But, even upon the assumption that the defendants can maintain that, as between the parties to this action, the said appliances did not constitute parts of the building, it does not follow, that the mere taking possession of them, by Mrs. Jewell with the building, in itself amounted to a wrong. She has not disposed of them. She left them in the positions they always occupied, and thus allowed the sub-tenants of the defendants, who were in actual possession of parts of the building, and who must be presumed to have had the right of possession, as against the defendants, to have the benefit of their use. At any rate, as the defendants had theretofore considered and treated these appliances as parts of the building, Mrs. Jewell was justified in acting upon the same assumption, and it was incumbent upon the defendants to notify her of their mistake, if a mistake it was, and demand a return of the property, before they could treat her as a tort-feasor. This they did not do.

In every aspect that can be taken, therefore, the counter-claim under examination cannot be maintained in this action.'

The judgment should be affirmed, with costs.

Russell, J., concurred.  