
    Simon E. Bernheimer and Josephine Schmid, Appellants, v. John Hartmayer, Respondent.
    
      Replevin—counterclaims for storage of the chattels and for injury to defendant’s property in their removal are demurrable.
    
    The complaint in an action of replevin alleged that the plaintiffs, on or about the-5th day of May, 1899, were the owners, and entitled to the immediate possession, of certain personal property which the defendant then wrongfully took, and unlawfully withheld from the plaintiffs, notwithstanding a demand duly made therefor.
    The answer alleged, as a counterclaim, that the defendant, on or about the 5th day of May, 1899, entered into possession of the premises in which the property described in the complaint was stored; that he then ascertained that the plaintiffs were, or claimed to be, the owners of the property, and notified them to remove it, but that they neglected to do so until May thirty-first, when it was removed by the sheriff under the writ of replevin. Judgment was demanded for the reasonable value of the storage of the chattels from May 5 to May 31, 1899.
    The answer also alleged, as a counterclaim, that on May 31, 1899, the plaintiffs entered the defendant’s premises without his consent, to remove certain property belonging to them, and in doing so removed and damaged certain property belonging to the defendant, which damages the defendant sought to recover.
    
      Held, that both counterclaims were demurrable, as they did not arise out of the transaction set out in the complaint as the foundation of the plaintiffs’ claim,, and were in no way connected with the subject-matter thereof.
    
      Appeal by the plaintiffs, Simon E. Bernheimer and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25tli day of November, 1899, upon the decision of the' court, rendered after a trial at the New York Special Term, overruling their demurrer to the counterclaims contained in the defendant’s answer.
    
      Benjamin G. Paskusz, for the appellants.
    
      Edward Goldschmidt, for the respondent.
   McLaughlin, J.:

This was an action of replevin. The complaint charged that the plaintiffs on or about the 5th day of May, 1899, were the owners and entitled to the immediate possession of certain personal property, ivliich the defendant then wrongfully took, and has since wrongfully and unlawfully withheld from the plaintiffs, notwithstanding a demand duly made therefor.

The answer, after alleging that the defendant, prior to the commencement of the action, had offered to deliver the property mentioned to the plaintiffs, ppon/payment by them of a certain sum alleged to be due for -storage, set up two counterclaims: (1) A claim for storage of the property mentioned in the complaint from the 5th to the 31st day of May, 1899. (2) A claim for damages alleged to have been sustained in removing from defendant’s premises, on the 31st day of May, 1899, the property mentioned in the complaint, and also for the wrongful removal, on that day, of certain property which belonged to the defendant.

The plaintiffs demurred to both counterclaims upon the ground that they were not of the character specified in section 501 of the Code of Civil Procedure, in that they did not tend to defeat or diminish the plaintiffs’ recovery, and that neither of them was a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiffs’ claim, and that neither of them was connected with the subject-matter of the action. The demurrer was overruled, and from the interlocutory judgment thereafter entered plaintiffs have appealed.

We are of the opinion that the demurrer should have been sustained. As to the first counterclaim — it does not arise out of • the transaction set out in the complaint as the foundation of the plaintiffs’ claim, and it is not connected in any way with the subject-matter of it. The complaint, it will be noticed, after setting forth the plaintiffs’ title to the property sought to be replevined, alleged that “ on or about the 5th day of May, 1899, the defendant herein wrongfully took possession of the aforesaid chattels, and since then the defendant has wrongfully and unlawfully withheld, and still wrongfully and unlawfully withholds, the same from these plaintiffs.” The cause of action and the plaintiffs’ right to recover are based upon the defendant’s wrongful act in taking and retaining possession of the property referred to; while the allegations of the counterclaim are that on or about the 5th of May, 1899, the defendant, as owner, entered into possession of the premises in which the chattels-described in the complaint were stored; that he then ascertained that the plaintiffs were, or claimed to be, the owners of the chattels, and that he notified them to remove .them ; that although they promised to do so at once, they permitted the same to remain on the-premises until May thirty-first, when they were removed by the sheriff under the writ of replevin issued in this action, and “ that a reasonable charge or compensation for the use of defendant’s said premises by plaintiffs, for the storage of said chattels therein, from May 5 to May 31 is $50.” The cause of action alleged in the complaint has its origin in and is based upon an alleged tortious act of the defendant. It is an action ex delicto. ( Witty v. Campbell, 44 N. Y. 410; Schaefer v. Empire Lithographing Co., 28 App. Div. 469.) The existence of the counterclaim and its establishment depend upon a contract, either express or implied, an agreement on the part of the plaintiffs to pay what it was reasonably worth to care for the property during the time alleged in the counterclaim. Manifestly, a charge for the storage of property subsequent to a refusal to deliver it to one who is legally entitled to it cannot, under the section of the Code referred to, constitute a counterclaim. If, as contended by respondent’s counsel,' defendant had a lien for storage at the time the demand is alleged to have been made, then the plaintiffs must necessarily fail in the action. As already indicated, to entitle them to recover they must prove that they were entitled to the possession at the time the demand was made, and if the defendant then had a lien, they had no such right.

As to the second counterclaim, the allegations, in substance, are that on the 31st of May, 1899, the plaintiffs entered the defendant’s-premises without the defendant’s consent to remove certain property belonging to them, and in doing so removed certain property-belonging to the defendant, and also damaged other property of his. Whatever may be said as to the cause of action here attempted to-be alleged, it is clear that it does not arise out of the transaction which constitutes the plaintiffs’ claim, nor is it connected with the subject-matter of it. The cause of action here alleged did not exist at the time the action was commenced. It had its origin subsequent to the commencement of the action. It was something-done by the sheriff in the execution of the writ of replevin, and in addition to this, there is nothing to show that the property or any of it, is the property referred to in the complaint. If it be true-that the plaintiffs have wrongfully taken from the defendant since the commencement of the action property to which they were not entitled, the defendant has his remedy, but he cannot justify his own wrong in refusing to deliver to the plaintiffs property to which they were entitled, by showing that they have committed a wrong by taking from him subsequent to the commencement of the action property to which they were not entitled.

It follows that the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, with leave to the-defendant to amend his answer within twenty days, on payment of costs in this court and in the court below.

Yan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ.,, concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend answer in twenty days on payment of costs in this court and in the court below.  