
    Horace B. Kelly and Others, Appellants, v. Walter L. S. Webster, Respondent.
    Fourth Department,
    March 8, 1911.
    Pleading — suit to enjoin interference with access to wharf—counterclaim asking injunction and damage for trespass.
    In a suit in equity to restrain the defendant, an abutting landowner, from interfering with the plaintiff’s right of access to a wharf to which title is claimed by adverse user, he may, as a counterclaim, allege ownership of the wharf, ask that the plaintiff be enjoined from entering thereon and claim damages on the theory that the plaintiif’s former entries were trespasses.
    As a general rule one tort cannot be pleaded as a counterclaim to an action on another where there is no necessary or legal connection between them.
    But the Code of Civil Procedure intended to secure adjustment in a single action of all controversies between the parties concerning the same subject-matter, and to that end it should be liberally construed.
    In such action a barb wire fence by which the defendant prevented the plaintiff’s entry cannot be deemed the subject-matter of the action rather than the respective rights of the parties in the wharf.
    Appeal by the plaintiffs, Horace B. Kelly and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 29 th day of October, 1910, upon the decision of the court, rendered after a trial at Oswego Special Term, overruling the plaintiffs’ demurrer to the counterclaim set up in the defendant’s amended answer. *
    
      L. H. Ford, for the appellants.
    
      Albert A. Hovell, for the respondent.
   Robson, J.:

Plaintiffs and defendant are respectively the owners of adjoining parcels of real estate, which both border on the St. Lawrence river. Plaintiffs allege that they are the owners of a wharf built by their predecessors in title upon the water front of their premises, which for more than twenty years they and their predecessors in title have occupied, used and maintained openly and adversely to defendant and his grantors under a claim of right so to do, and that it has so been constructed, maintained and used with the consent of defendant and his predecessors in title; that defendant in Hay, 1910, built, and has since maintained, a barb-wire fence across the wharf at a point near where the same adjoins plaintiffs’ uplands, which shuts off plaintiffs’ access ■ to the wharf and wrongfully interferes with plaintiffs’ use of the same and a large portion of their water front to plaintiffs’ damage specially alleged. The relief demanded is that defendant be enjoined and restrained from preventing, or hindering, plaintiffs’ right of access to said wharf and embankment, and their right of access to the water front and enjoining and restraining maintenance of the fence, with an assessment of damages sustained by plaintiffs because of the maintenance of said fence. Defendant admits the plaintiffs own the lands described in the complaint as owned by them, defendant’s ownership of lands adjoining the same on the northeast, and the erection and maintenance of the fence and denies all other allegations of the complaint. As a separate defense and counterclaim, defendant alleges ownership of the wharf and that the same was built by defendant’s predecessors in title extending several hundred feet along the water front of defendant’s property, and that the construction of the wharf was a legal use of defendant’s premises and the water front thereof. He then sets up certain trespasses of plaintiffs in wrongfully entering upon, using and injuring the wharf to defendant’s damage of $5,000, and asks that plaintiffs be enjoined from entering upon and using the wharf, and that he recover damages to the amount of $5,000 and have such other relief as is proper.

Plaintiffs demurred to this counterclaim on the ground that on its face it appears not to be a cause of action arising out of the transaction set forth in the complaint as the foundation of plaintiffs’ claim, nor connected with the subject of the action.

It is well settled that one tort cannot be pleaded as a counterclaim to an action for another tort when there is no necessary or legal connection between them. (Rothschild v. Whitman, 132 H. Y. 472.) If this were an action at law to recover damages for defendant’s alleged trespass, possibly defendant could not set up as a counterclaim plaintiff’s trespasses on his rights, even though the trespasses in éach instance were alleged in reference to the same property. (Hall v. Werney, 18 App. Div. 565.) In the case cited, plaintiff’s action was to recover damages to liis growing crops and defendant counterclaimed for damages caused by plaintiff’s obstructing a highway. It was held that the trespasses were distinct and unrelated and defendant’s counterclaim improper. But this is an equitable action to establish plaintiffs’ rights in the wharf itself. If plaintiffs are right in their claim to ownership of, or right to use the wharf, then defendant’s act in excluding them from its use was a trespass on their rights. On the other hand, if defendant’s claim to ownership of the wharf and that plaintiffs had no right to use it he valid, then plaintiffs’ use of the wharf was a trespass on defendant’s property for which he should be entitled to recover. This leads to the same conclusion reached by the court at Special Term that the real subject of the action ” is the ownership of the wharf, or the right to use it. The damages for defendant’s trespasses thereon of which plaintiffs complain, and those of plaintiffs, which defendant sets up in his counterclaim, are incidental merely to the real subject of the action. (Lynch v. Metropolitan Electric R. Co., 129 N. Y. 274.)

Plaintiffs, however, insist that the subject of the action is not the respective rights of the parties in the wharf, but is the barb-wire fence which they seek to have remóved. This cannot be true, because. the fence is only the means by which defendant excludes plaintiffs from their rights, if any, in the wharf, and is a trespass if they prove the rights which they seek to have established in this action.'

The practice prescribed by the Oode is intended to secure adjustment in a single' action of all controversies between parties concerning the same subject-matter, and to that end a liberal construction of its provisions in relation to the counterclaims which may be interposed may be indulged. (Code Civ. Proc. § 501; O’Brien v. Dwyer, 76 App. Div. 516, 519; Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226, 237.) In the ease last cited plaintiff’s action was to restrain defendant from using a trade mark. Defendant alleged title to the trade mark was in him, and by way of counterclaim demanded that plaintiff be enjoined from using it, and damages for its unlawful use. The counterclaim was held to be connected with the subject of the action. In Carpenter v. Manhattan Life Ins. Co. (93 N. Y. 552) plaintiff, a mortgagee in possession, sued defendant for an alleged conversion of wood which plaintiff had cut from the mortgaged premises. Defendant, a prior mortgagee, counterclaimed for plaintiff’s waste in cutting the same wood, and the counterclaim was held good as connected with the subject of the action.

The interlocutory judgment should be affirmed, with costs, with leave to plaintiffs within twenty days to plead over on payment of costs.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the plaintiffs to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.  