
    The Thomas P. Beale Furniture Company, Appellant, v. James J. McGrorty, Respondent.
    Set-off and counterclaim — Subject-matter — Claim on contract against claim founded on tort.
    Appeal by the plaintiff from a judgment rendered in the Municipal Court of the city of New York, eleventh district, borough of Manhattan.
    Porter & Barnes, for appellant.
    William G. McGrorty, for respondent.
   Davis, J.

This action was brought to recover damages for the conversion of certain articles of furniture. The defendant denies the conversion. He admits that the furniture was delivered to him, but asserts that it was not the furniture ordered by him and that he repeatedly notified the plaintiff to take it away from his place of business. Defendant’s contention on this point was fully sustained by the evidence. In fact it was not denied by the plaintiff. However, the court decided that there was a conversion, but sustained a counterclaim interposed by the defendant for storage of the furniture and rendered judgment for nine dollars in favor of the plaintiff — nine dollars being the difference between the claim of the plaintiff and the storage charges claimed by the defendant. The plaintiff, objecting to the allowance of the storage charges, appeals from the judgment. . The judgment is necessarily based upon a finding of a conversion of the furniture by the defendant. This being so, the allowance of the counterclaim was improper. The conversion by defendant is inconsistent with a claim of storage charges, and such a counterclaim cannot be proved in an action of conversion.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Gildebsleeve and Hendbick, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  