
    Washington Trading Corporation, Appellant, v. Cornell Fabrics, Inc., Respondent, Impleaded with Another, Defendant.
    First Department,
    March 15, 1935.
    
      Charles Ballon of counsel [Morris A. Paley with him on the brief; Louis J. Paley, attorney], for the appellant.
    
      Nat C, Helman, for the respondent.
   McAvoy, J.

Plaintiff brought this action to recover an alleged balance of the purchase price of certain goods sold by the plaintiff to the defendant. The amended answer of the defendant Cornell Fabrics, Inc., alleges a second counterclaim and offset that the plaintiff obtained a warrant of attachment in this action, pursuant to which the sheriff made a levy on its bank account; that the warrant of attachment was thereafter vacated, and that, as a result of such warrant and levy, the credit rating of the defendant wasi mpaired to defendant’s damage in the sum of $50,000.

Plaintiff moved at Special Term to dismiss this second counterclaim, on the ground that it appears on the face thereof that it is not one which may be properly interposed in this action. The motion was denied.

The transaction set forth in the complaint is for goods sold and delivered by the plaintiff to the defendant. Defendant’s alleged cause of action in the counterclaim is not connected in any manner with the contract or the transaction involving the sale of the goods, nor is it “ connected with the subject of the action.” Nor is the counterclaim based on any other cause of action on contract.” The action alleged is for damages for a tort. The pleading fails to conform to the requirements of section 266 of the Civil Practice Act for a valid Counterclaim.

The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the second counterclaim of the defendant, Cornell Fabrics, Inc., should be granted, with ten dollars costs.

Martin, P. J., O’Malley, Townlby and Glennon, Jj., concur.

Order reversed, with twenty dollars costs and cdisbursements, and motion granted, with ten dollars costs.  