
    John Corrigan, Pl’ff, v. Margaret Ritter, Def’t.
    
      (Supreme Court, Special Term, Erie County,
    
    
      Filed June 8, 1891.)
    
    Answer—Supplemental—Counterclaim—What allowed.
    An action was commenced in 1888 to recover for an alleged breach of contract, and an answer served. Afterwards a new contract was entered into between the parties, which provided that, if properly fulfilled by the defendant, the action should be discontinued without costs. In 1891 the defendant moved for leave to serve a proposed supplemental answer, which alleged as a first defense that the second contract had been peri formed on her part, and for a second defense a counterclaim for work, labor and services performed in addition to that required by said contract’. Eeld, that as to the first defense the motion would be granted, but that the second defense was such a counterclaim as clearly came within subd. 2 of § 501 of the Code, and therefore not such a matter as could be counterclaimed in the action.
    Motion for leave to serve supplemental answer.
    
      Calkins & Forsythe, for the motion; Clinton, Clark & Ingram, opposed.
   Ward, J.

—This action was commenced October 18, 1888, to recover damages sustained by the plaintiff on account of an alleged breach by the defendant of a contract whereby she was to construct two marine boilers and put them on board of the steamer Aurora, a propeller navigating the great lakes, and also for damages sustained by the plaintiff, caused by the detention of the steamer, in consequence of the boilers not being put in as provided by the contract

About December 8, 1888, the defendant served her answer denying the complaint and setting up a counterclaim for $1,700, alleged to be the balance due upon the purchase price of the boilers. Afterwards a new contract was entered into between the parties, whereby the defendant was to take out of the steamer the two boilers put in by her (which had been put in under the first contract), and which new contract is set forth in the supplemental answer proposed and made a part of the motion papers ; and it was provided in said new contract that if the new boilers were constructed in accordance with the terms of the new contract, the parties hereto should discontinue, without costs, this action; defendant alleging that the said contract had been performed on her part, and had in effect extinguished the cause of action set forth in the complaint.

The proposed supplemental answer contains another defense, viz., that after the service of the original answer herein and subsequent to the 13th day of February, 1889, the defendant at the special instance and request of the plaintiff performed work, labor and .services, and furnished materials which were used in and about the works and repairs of the said steamer Aurora, which work, labor, services and materials were in addition to those required to be performed and furnished by the defendant under said new contract, and were reasonably worth the sum of $478.82, no part of which had been paid, etc., and which was due and unpaid, and the defendant demanded judgment for the said sum and alleged the same as a counterclaim. These two answers were separately stated in the proposed supplemental answer.

The difficulty upon this motion arises upon that branch of it which asks leave to serve as a supplemental answer the counterclaim above referred to. If this counterclaim may be regarded as : ‘‘ 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 ” as provided in the first subdivision of § 501 of the Code of Civil Procedure then under the authority of the case of Howard v. Johnston, 82 N. Y., 271, the court would be authorized to permit this answer to he interposed. If it does not come within the scope of that subdivision of the Code, but rather comes within the second subdivision of that section which defines a counterclaim as arising also: “ In an action on contract any other cause of action on contract existing at the commencement of the action,” it cannot be interposed because it did not exist at the commencement of the action. Bostwick v. Menck et al., 4 Daly, 68; Tiffany v. Bowerman, 2 Hun, 643; Farmer's Loan & Trust Company, etc., v. United Lines Telegraph Co., 14 Civ. Pro., 187 ; Continental Construction & Improvement Co. v. Vinal, id., 293; 15 N. Y. State Rep., 968; Bull v. Rothchild, 16 N. Y., 356; 22 N. Y. State Rep., 536; Bull v. Rothchild, 16 N. Y., 396; 22 N. Y. State Rep., 430; Staunton et al. v. Swann, 10 N. Y., 12.

It is alleged in the answer embracing the counterclaim that the amount sought to be counterclaimed was for work, labor, services and materials in addition to those required to be performed or furnished by the contract and were reasonably worth, etc. So that this claim was for extra work done and materials furnished by the defendant for the plaintiff and not embraced in the contract or connected with the subject of action set forth in the complaint, and had an action been brought thereon it would have been simply one for quantum meruit or an implied assumpsit, and clearly comes within the second subdivision of § 501 of the Code, and is therefore not such a matter as can be counterclaimed in this action.

The motion to serve a supplemental answer is granted as to the first answer set forth in the proposed supplemental answer, but denied as to the second answer set forth therein, being the answer alleging the counterclaim, without motion costs to either party.  