
    Francis S. Pecke, Plaintiff, v. The Hydraulic Construction Co., Defendant.
    
    (Supreme Court, New York Special Term,
    June, 1897.)
    Counterclaim — When, although containing words applicable to a tort, it alleges a breach of contract — A defense must tend to disprove the cause of action.
    Where to a complaint, alleging two causes of action, one for an “ agreed ” salary and the other for the “ agreed ” price of goods sold, a counterclaim is interposed which alleges that, although the plaih- ■ tiff undertook and agreed to certify correct payrolls, he willfully and negligently certified false and fraudulent ones, the counterclaim must, although containing words appropriate to a pleading in tort, be deemed to proceed upon a breach of the agreement which the plaintiff made; and, in this view, is proper in an action based on contract (Code Civ. Proe., § 501, subds. 1, 2); but the same matter is bad, when pleaded ás a defense, as it does not tend to disprove the cause of action alleged in the complaint.
    Demurrer to answer.
    Charles J. Pearson, for plaintiff.
    Field & Deshon, for defendant.
    
      
      Received too late for insertion in proper place.— [Reporter.
    
   Pryor, J.

The plaintiff presents two causes of action in his complaint, namely, "first, a claim for “ an agreed salary,” and secondly, a claim for the “ agreed price ” of goods sold and delivered. For “ a separate and distinct defense to both causes of action and .for a further counterclaim thereto,” the defendant alleges that by his contract of employment the plaintiff “ undertook and agreed ” to certify correct pay-rolls; that he “failed to perform his said agreement in that he willfully, negligently and without proper care and investigation on his part wrongfully certified false and fraudulent pay-rolls; ” and that by consequence the defendant has suffered damage in the sum of $1,600, for which judgment is demanded.

Obviously, the counterclaim proceeds upon a breach of contract. But, “ if the cause of action as set forth is doubtful or ambiguous, every intendment is in favor of construing it as being.in the nature of an action ex contractu.” Goodwin v. Griffis, 88 N. Y. 629, 638. The true nature of the action is not altered by the addition of words appropriate to a pleading in tort. Austin v. Randon, 44 N. Y. 63; Veeder v. Cooley, 2 Hun, 74; Sparman v. Keim, 83 N. Y. 245; Byxbie v. Wood, 24 id. 607; Conaughty v. Nichols, 42 id. 83; Graves v. Waite, 59 id. 156; Segelken v. Meyer, 94 id. 473, 484.

As both complaint and answer count upon contract, the counterclaim is clearly admissible. Code, § 501, subds. 1, 2; Harlock v. Le Baron, 1 Civ. Proc. 168. That the breach of contract of which defendant complains occurred before the commencement of the action, is sufficiently apparent on the pleading. A cause of action in defendant’s favor being manifest, we are not now concerned with its measure of recovery. It is entitled, in any event, to nominal damages.

The demurrer to the counterclaim is Overruled.

Biit the same matter is pleaded also as -a defense, and by a separate demurrer its validity as such is challenged. The' distinction between a counterclaim and a defense is obvious. A counterclaim, conceding the plaintiff’s cause of action, defeats- it, entirely or partially, by a cross démánd, . A defense disputes the alleged cause Of action, either as never extant or now abolished. Plainly, plaintiff’s claim is not disproved by the facts.pleaded as a defense, but is Only reduced or overbalanced by a counterclaim.

Demurrer to defense sustained, costs to neither party. Hollingshead v. Woodward, 35 Hun, 410; Grange v. Gilbert, 44 id.

Demurrer sustained, costs to neither party.  