
    Francis J. C. Ferris, Resp’t, v. The Armstrong Manufacturing Co., App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Pleading — Counterclaim—False imprisonment.
    In an action for false imprisonment under an order of arrest, a judgment recovered against the plaintiff in the action in which he was arrested is not a proper subject of counterclaim.
    
      {People v. Dennison, 84 N. Y., 272, followed.)
    Appeal from judgment sustaining a demurrer to a counterclaim in the answer.
    Action to recover damages for false imprisonment, the allegation being that “ defendant wrongfully and by force caused the plaintiff to be taken into custody and imprisoned ” by the sheriff.
    The answer alleged that such imprisonment was by virtue of an order of arrest, and by way of counterclaim, that prior to the vacating of the order of arrest the defendant obtained a judgment in the court of common pleas in an action brought by it against the plaintiff herein, and that after the entry of the judgment aforesaid a motion was made by this plaintiff, who was defendant in that action, to vacate the order of arrest granted in that action on a technicality, for the reason that the complaint failed to state the grounds upon which the defendant was arrested, and that the judgment was entered prior to the vacating of the arrest, and that said judgment existed prior to the commencement of this action, and that the judgment in the court of common pleas was the very foundation for the plaintiff’s cause of action here. The demurrer of the plaintiff' claims that it was not a proper counterclaim. Judgment was rendered in favor of the plaintiff.
    
      Franldin Bien, for app’lt; Daniel S. Bemsen, for resp’t.
   Pratt, J.

The case of People v. Dennison, 84 N. Y., 272, is conclusive in support of the decision below.

The plaintiff’s cause of action is based upon the wrongful arrest. The cause of action stated in the counterclaim is based on contract and cannot be availed of in this suit.

Judgment affirmed, with costs.

Dykman and Cullen, JJ., concur.  