
    Talbot Murden v. Peter Priment.
    In an action to recover damages for a tort, the defendant cannot set up, as a counterclaim or recoupment of damages, an independent tort committed by the defendant and not connected with the transaction upon which the plaintiff’s right of action is founded.
    The cases specified in which, prior to the Code, the defendant was allowed to recoupe his damages. Per Daly, J.
    
    
      It seems, that all which formerly was allowed to he set up as a defence, by way of recoupment, is now available as a counter-claim under the Code.
    Appeal by defendant from a judgment of tbe Marine Court. This was an action to recover damages for injury to person and property. Tbe defendant set up a counter-claim in bis answer. Tbe facts were these: The plaintiff occupied tbe first story of tbe store 145 Elm street, as a blacksmith’s shop. Tbe defendant occupied tbe story immediately overhead. He bored several auger boles in tbe floor of bis room and poured water down on tbe workmen and tools in tbe plaintiff’s sliop. Tbe tools were injured, the coal wet, and tbe plaintiff at one time was -obliged to stop work in consequence. Tbe defendant on tbe trial offered to prove, by way of recoupment or counter-claim, damages suffered by tbe defendant from smoke coming into bis place from tbe plaintiff’s forge. Tbe evidence was excluded and the defendant’s counsel excepted. A verdict of one hundred dollars was rendered for tbe plaintiff, and from tbe judgment entered on tbis verdict tbe defendant appealed.
    
      II H. Morange, for tbe appellant.
    
      ^dix Hart, for tbe respondent.
   INGRAHAM, First Judge.

Tbe evidence offered of a counterclaim was properly rejected. I arn at a loss to see bow any counter-claim can arise in an action for trespass on. lands. If there could be any case to admit of it, by tbe Code, § 150, it can only be where it is for a cause arising out of tbe transaction set forth in the complaint. This was for pouring water through boles in a floor upon tbe plaintiff’s premises. Tbe defendant sought to recover damages occasioned by smoke arising from tbe plaintiff’s premises. How smoke from the plaintiff's premises. ' can be said to arise out of a transaction such as the plaintiff complains of, viz.: pouring water from defendant’s premises upon bis, it is difficult to discover, unless it was occasioned by tbe ex-tinguishment of tbe fires of the plaintiff by the defendant’s acts. The evidence was neither admissible as a counter-claim nor in mitigation of damages.

The cause of action was fully proved to have been committed by some one on the plaintiff’s premises, and under circumstances from which the assent or knowledge of tbe defendant might be presumed.

Tbe conduct of tbe defendant and bis answers, when informed of tbe injury, strengthened that presumption, and warranted a finding in tbe plaintiff’s favor.

Tbere was no error in the justice’s charge of which the defendant can complain. If there was any, it was in the defendant’s favor.

The return does not show what verdict or judgment was rendered, but as the defendant appeals from a judgment, I conclude the judgment rendered was for the plaintiff. If so it should be affirmed.

Daly, J.

The defendant ashed to set up a distinct and independent tort, committed by the plaintiff, by way of counter-claim or as a recoupment of damages. The injury complained of could not be set up as a counter-claim, for the reason stated by the first judge, that it had no connection with the transaction upon which the plaintiff’s right of action was founded, nor $as it available to the defendant by way of a recoupment of damages. As the law stood before the Code, a'recoupment of damages was allowed against a party seeking to enforce a contract where he had done something or omitted to do something, under the contract, whereby the other party had sustained loss or injury. As where the plaintiff erects a house for the defendant, but the work or materials are inferior to what was-con trac ted for, then the defendant shall recoupe, or cut off, the deteriorated value of the work or materials from the contract price. Foster v. Butler, 7 East, 479 ; Grant v. Button, 14 Johns. 377 ; Ives v. Van Epps, 22 Wend. 155. So, where the contract is sought to be enforced, the defendant might rceoupe damages for a breach of warranty on the thing sold (Rait v. McAllister, 8 Wend. 109 ; Jones v. Scriven, 8 Johns. 358 ; Cook v. Mosely, 13 Wend. 277), or for fraud, as where the plaintiff sold a mare, knowing it to be diseased, or made fraudulent representations on the sale of land. Benton v. Stewart, 3 Wend. 236; Spalding v. Vandercock, 2 id. 431 ; Allaire v. Whitney, 1 Hill, 414 ; Bleecker v. Vrooman, 13 Johns. 302 ; Till v. Rood, 15 id. 230 ; Lewis v. Cosgrove, 2 Taun. 2 ; Van Epps v. Harrison, 5 Hill, 63. So, in an action by an attorne or surgeon for services, the defendant might reeoupe for the damages resulting from the plaintiff’s want of skill (Gleason v. Clark, 9 Cow. 57; Hopping v. Quin, 12 Wend. 517 ; Fleming v. Niagara C. P., 12 id. 246 ; Duffet v. James, cited in 7 East, 479), or in an action for use and occupation, the defendant may recoupe damages for the breach of an agreement to lreep the premises in repair. Westlake v. Degraw, 25 Wend. 669 ; Ethridge v. Osborn, 12 id. 529 ; Dorwin v. Potter, 5 Denio, 306. But there can be no recoupment for a distinct and independent wrong on the part of the plaintiff. Cram v. Dusser, 2 Sandf. S. C. 120. It is allowable only where a man brings an action for a breach of a contract between him and the defendant, and the defendant can show that he has sustained inj uiy, in consequence of the violation of some stipulation or condition in the ,@j|atract on the part of the plaintiff. Ives v. Van Epps, 22 Wend. 155. Thus, in Oram v. Dusser, the tenant, in an action for rent, was not allowed to recoupe damages for negligent and tortious behavior on the part of the landlord, his servant, in making repairs upon the pi’emises, though the right to enter and make repairs ivas reserved by the lease. It is presumable that all that was allowable formerly by way of recoupment is available under the Code as a counter-claim, and if the defendant could not set up the injury complained of as a counter-claim, he could not do so by way of recoupment.

Judgment affirmed.  