
    LOUIS CHAMBORET and ELIZA CHAMBORET, Plaintiffs and Respondents, v. JAMES CAGNEY, Defendant and Appellant.
    
      [Decided April 30, 1870.]
    Under subdivision 1 of section 150 of the Code, a counter-claim may be interposed in an action for a tort, provided such counter-claim arises out of the transaction set forth in the complaint as the foundation of plaintiffs’ claim, or is connected with the subject of the action.
    The term “ subject of the action ” must be deemed tornean the facts constituting plaintiffs' cause of action*
    
    Before Barbour, C.J., McCunn and Freedman, JJ.
    Appeal from an order made at Special Term, by Mr. Justice Jones, sustaining plaintiffs’ demurrer to the counterclaim set forth in the answer of the defendant.
    The complaint alleged as a cause of action that on September 28,1868, the defendant unlawfully and wrongfully took and carried away certain goods, chattels, household furniture, wearing apparel, and jewelry, the property of the plaintiffs, of the value of $4,170, and that he converted and disposed of the same to his own use to plaintiffs’ damage $5,000. The answer of the defendant contained a series of specific denials, putting in issue every material allegation of the complaint, and also a counterclaim for the recovery of $350—damages alleged to have been sustained by the defendant in the following manner:
    That in pursuance of a certain agreement made between the parties in relation to the hiring of certain premises, a certain chattel mortgage upon the goods and chattels described in the complaint was duly executed and delivered by the plaintiffs to the defendant; that default was made in the performance of the condition contained in the mortgage; that the defendant thereupon took possession, as he lawfully might, of so much of said property as he could find, but that the plaintiffs had, before the said taking, secreted and removed a part thereof, which could not be found; that it was subsequently discovered that the plaintiffs had no title to a part of the property taken by the defendant, although included in the mortgage, and that the same was replevied and taken from the possession of the defendant by the true owners thereof, whereby the defendant sustained loss to the amount of $350, for which amount he demanded judgment against the plaintiffs.
    The plaintiffs demurred to the counter-claim contained in the answer for insufficiency in not stating facts sufficient to constitute a counter-claim.
    The demurrer was sustained at Special Term, and the defendant appealed.
    
      Mr. Elias J. Beach for appellant.
    The Code prescribes no rule by which to determine the sufficiency of an answer containing a counter-claim, except that it must state facts enough to constitute a good cause of action in favor of the defendant and against the plaintiff, and that it be one of the several causes of action defined by § 150 of the Code (Allen v. Haskins, 5 Duer, 332).
    The counter-claim in this action arises out of the transaction set forth in the complaint, as the foundation of plaintiff’s claim, and is connected with it (Code § 150, subdiv. 1).
    The counter-claim authorized by the Code (§ 150) embraces both set-off and recoupment. It is broader and more comprehensive than either (Vassar v. Livingston, 3 Kernan, 256; Beardsley v. Stover, 7 How., 294).
    It secures to the defendant the full relief which a separate action at law or a bill in chancery would have secured him on the same state of facts (Gleason v. Moen, 2 Duer, 642).
    It may be for either liquidated or unliquidated damages (Schubart v. Harteau, 34 Barb., 447).
    And of an equitable or legal nature (Currie v. Cowles, 6 Bosw., 453).
    The counter-claim set up by the defendant in his answer, is one of those authorized by subdivision 1, § 150 of the Code.
    
      It is a cause of action which arises out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and is also connected with the subject of the action (Code, § 150, subdiv. 1).
    A counter-claim to be available to a party must afford him protection in some way against the plaintiff’s demand for judgment, either in whole dr in part. It must, therefore, consist of a set-off or claim by way of a recoupment, or be i/n some way connected with the subject of the action stated in the comflcmd (Mattoon v. Baker, 24 How., 329).
    A counter-claim cannot be rejected on account of its being imperfectly stated in the answer. The remedy in such a case is a motion to make it more definite and certain (Currie v. Cowles, 6 Bosw., p. 453).
    
      Mr. J. A. Davenport for respondents.
    The Code authorizes no counter-claim to be set up in an action on tort (Code, § 150; Patteson v. Richards, 22 Barb., 143; Donohue v. Henry, 4 E. D. Smith, 162).
    The Code of Procedure provides expressly in section 150 for certain exceptions to this rule.
    The first subdivision of section 150 provides that the plaintiff may set up as a counter-claim “ a cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action.”
    The second subdivision extends the provisions of the first, by providing, that “ in an action on contract, any other cause of action arising also on contract, and existing at the commencement of the action,” may be made a subject of counter-claim.
    These are the only exceptions provided for, and the statute nowhere enacts that a counter-claim shall be allowed in an action on tort. Such actions must therefore follow the general rule.
    If counter-claims be allowed in actions for tort, the one demurred to is still bad, as it arises neither “ on a cause of action arising out of the transaction set forth in the complaint as the fomidation of the plaintiffs claim,” nor “ on a cause of action connected with the subject of the action ” (Code, § 150, subdiv. 1).
    The transaction set forth in the complaint as the foundation of the plaintiffs claim, is the seizure of plaintiffs’ furniture, clothes, and jewelry.
    The cause of action attempted to be set up as a counter-claim is founded on the alleged fact that plaintiffs had rendered defendant’s security for rent insufficient: first, by concealing a part of plaintiffs’ furniture, so that it could not be seized by defendant ; and, secondly, by having represented certain furniture to be theirs, when in fact it belonged to others..
    It cannot be said that plaintiffs’ rendering defendant’s security for rent insufficient, by transactions which must have taken place, if at all, before defendant’s seizure could have arisen out of that seizure.
    The right of the plaintiffs to claim, and of the defendant to counter-claim, must be reciprocal. Should the defendant in the present case bring an action setting up his present counter-claim in the form of a complaint, the plaintiffs in this case could not then, as defendants, interpose their present complaint as a counter-claim (Mayor of New York v. Parker Vein S. S. Co., 12 Abb., 300; 21 How. Pr. Rep., 289; Piser v. Stearns, 1 Hilton, 86).
   By the Court:

Freedman, J.

The facts pleaded and relied upon by the defendant as a counter-claim constitute a good cause of action in favor of the defendant against the plaintiffs. If greater certainty and definiteness are desired, plaintiffs’ remedy is by motion and not by demurrer. The real question, therefore, to be determined is, whether these facts can be pleaded as a counter-claim in this action, or whether the defendant is to be driven to a separate action.

The counter-claim is a creation of the Code, and since 1852 includes the defenses of set-off and recoupment as they were understood prior to that time (Pattison v. Richards, 22 Barb., 146), but is broader and more comprehensive than either. In Boston Mills v. Eull (6 Abb. Pr., N. S., 319; S. C., 37 How. Pr., 299), I discussed this question fully, citing many authorities, and pointed out the distinction between a set-off, recoupment, and the counter-claim introduced by the Code.

The first essential of every counter-claim is that it shall, of itself, be a distinct cause of action in favor of the defendant pleading it and against a plaintiff in the action, between whom a several judgment might be had as provided by section 274. If it falls short of this, it cannot be treated as a counter-claim within the meaning of the Code (Vassar v. Livingston, 13 N. Y., 248), although it may constitute a good defense as a set-off (Ferreira v. Depew, 4 Abb. Pr., 131; Duncan v. Stanton, 30 Barb., 533; Spencer v. Babcock, 22 Barb., 326). A counter-claim differs from new matter which may be set up in the answer in this: the new matter can only be used to defeat an action; a counter-claim may be used to sustain an action. It is simply a cross action to enforce a legal or equitable set-off against the plaintiff in the action.

There are two species of counter-claims authorized by the Code: one which can be pleaded only in an action arising upon contract, and another which may be set up in amy action.

I. In an action arising on contract the defendant may set up as a counter-claim any other cause of action arising also on contract, express or implied (Andrews v. The Artisans’ Bank, 26 N. Y., 301, and Lignot v. Redding, 4 E. D. Smith, 285), and existing at the commencement of the action, against a plaintiff between whom and such defendant a several judgment might be had in the action according to the provisions of section 274, and owned by such defendant at the time of the commencement of the action (Chambers v. Lewis, 11 Abb., 210; Van Valen v. Lapham, 13 How., 240) and due at said time (Rice v. O’Connor, 10 Abb., 362; Code, sec. 150, subd. 2).

II. In any other action any defendant may set up as a counterclaim against any one^ of the plaintiffs, between whom and himself a separate judgment might be had in the action as aforesaid (sec. 274; Briggs v. Briggs, 20 Barb., 477; Newell v. Salmons, 22 Barb., 647), any claim existing in favor of such defendant against such plaintiff at the time of the commencement of the action (see Chambers v. Lewis and Van Valen v. Lapham, supra), and of which such defendant is the owner (Lafarge v. Kelsey, 1 Bosw., 171), provided, however, such claim is founded upon a cause of action arising out of the contract or transaction set forth in the complaint, oe is connected with the subject of the action (Code, sec. 150, subd. 1).

Formerly the rule was that in an action for a tort a counterclaim, no matter whether arising on contract or based upon another tort, cannot be allowed; but this rule, it will be observed, has now been so far modified as to allow the interposition of a counter-claim in the full sense of the Code, whether arising on contract or based upon a tort, in an action for a tort, whenever such counter-claim is founded upon a cause of action arising out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, oe whenever it is connected with the subject of the action. As soon as a defendant does bring himself within one or the other of these exceptions made to the general rule, his right to counter-claim is perfect, irrespective of the form of plaintiffs’ cause of action as set out in the complaint. This point has been expressly decided by this court, at General Term, in Xenia Bank v. Lee (2 Bosw., 694; 7 Abb., 372). See, also, to same effect, Brown v. Buckingham (11 Abb., 387; 21 How., 190).

The authorities relied upon by the appellants in the case at bar do not establish a contrary doctrine. Hpon a careful examination and analysis of them I found that every case so cited has been correctly decided, although with different result, for the reason that the defendant had failed to bring himself within at least one of the exceptions established by the Code as aforesaid. Pattison v. Richards (22 Barb., 143) was an action for a tort; defendant counter-claimed for breach of a contract made four years prior to the commission of the alleged tort and having- no connection with the subject of the action.

Donahue v. Henry (4 E. D. Smith, 162) was an action for a tort, and a proposed set-off was held inadmissible because it related to other property than the one forming the subject of the action.

Barhyte v. Hughes (33 Barb., 320) was an action for an assault and batteiy. The defendant set up, by way of counter-claim, an assault and battery committed upon him by the plaintiff jprior to the one described in the complaint. The court very properly held that the two occurrences were so independent of each other that they could not be disposed of in one action.

In Mayor, etc., v. The Parker Vein Steamship Company (12 How., 289; 12 Abb., 300; 8 Bosw., 300) the action was on a contract for the payment of rent. The counter-claim was for a wrongful conversion of certain fixtures. It neither arose out of the contract or transaction set forth in the complaint, nor could it be connected with the subject of the action. To obviate this difficulty the defendants made an attempt to sustain it under the second subdivision of section 150, which provides that in an action arising on contract any other cause of action arising also on contract may be set up as a counter-claim, and argued that they had a right to waive the tort and proceed upon the legal fiction of an implied contract to pay the value. But the court held that this could not be done under the subdivision referred to; that the counter-claim, as pleaded, was simply and purely a claim to recover damages for a tort, upon which, according to the rule laid down by the Court of Appeals in Walker v. Bennett (16 N. Y. R., 250), no recovery could be had as upon contract.

' The only remaining question therefore is, whether the defendant has brought himself within the letter and spirit of the first subdivision of section 150 of the Code. I have not been able to find that the precise meaning of the words “ subject of the action,” as used in that subdivision, has ever been judicially determined. In Borst v. Corey (15 N. Y. R., 509), the Court of Appeals held that the term subject-matter ” of suits, as used in section 49 (of 2 R. S., 301), is synonymous with the term cause of action ” used elsewhere in the same statute. Analogy as well as sound reasoning call for a similar construction of the words “ subject of the action.” These words, must be deemed to mean the subject-matter in dispute, or, to be still more explicit, the facts constituting the cause of action. In the case at bar plaintiffs brought the action for a trespass upon their property. The object of the action is to recover damages, but the subject thereof is the trespass committed by the defendant. The counter-claim interposed by the defendant is based partly upon plaintiffs’ fraudulent concealment of property not taken by the defendant, and partly upon the failure of plaintiffs’ title to property which was taken. But it is not connected with the trespass upon which plaintiffs rely, nor can it be claimed that it arose out of the transaction set forth in the complaint. I concede that section 150 of the Code was enacted to simplify and expedite the administration of justice; that it is a remedial and beneficial provision, which should, at all times, receive a liberal construction, and from the start I felt strongly inclined to uphold the counter-claim. Subsequent reflection, however, has convinced me that it cannot be done without a great stretch of the meaning of the words “ subject of the action” beyond their true and. proper significance.

The order appealed from should be affirmed, with costs.  