
    HARRIS against CURET.
    
      New York Superior Court, General Term;
    
    March, 1870.
    C OUHTER-CLAIM. —BAILMENT.
    In an action to recover from a boarding-house keeper or hotel keeper, for the loss of goods, upon his liability as bailee of the guest’s property, the defendant may set up, as a counter-claim, the plaintiff’s indebtedness to him for board, &c., incurred by the plaintiff as such guest.
    Appeal from an order overruling demurrer.
    TMs action was brought by Thomas Harris against Francois Curet. The complaint alleged that defendant was a licensed innkeeper, and, on a day named, received plaintiff as a traveler, he having with him a gold watch and money, which, by the negligence and carelessness of the defendant and his servants, were taken. from the room occupied by him at the inn by some person unknown, and thereby the same became wholly lost to plaintiff, to his damage, &c. That payment of said sum had been demanded from defendant, and refused. Wherefore he demanded judgment for the amount.
    The amended answer of the defendant denied every allegation not expressly admitted, and then stated that at the time alleged by the plaintiff as that of his being received by defendant, they made an agreement by which defendant was to furnish plaintiff with board and lodging in defendant’s boarding-house, for thirty dollars a week, in pursuance of which he was received and boarded upwards of seven months. That during that period defendant furnished plaintiff, at his request, necessaries, wines, &c., which, together with the
    
      board and lodging at the rate agreed, were reasonably worth two thousand three hundred and ninety-one dollars and ninety cents, which remained- unpaid. That these were furnished in the same house in which the loss was alleged to have occurred, and during a period including the time of the alleged loss, and that defendant’s claim arose out of the same contract or transaction set forth in the complaint; and the defendant demanded judgment for his counter-claim.
    The plaintiff demurred to this answer, and the demurrer was heard at special term before Mr. Justice Joke's, and overruled, the following opinion being rendered:
    Jokes, J.—This action is not one of tort brought for the conversion of goods, but it is brought for a cause of action arising out of a contract of bailment between the parties, and is to recover damages for the breach of that contract by the defendant.
    The defendant seeks to counter-claim a cause .of action arising to him out of the self same contract.
    This comes directly within section 150 of the Code.
    Demurrer to the answer overruled with costs, with liberty to the plaintiff to withdraw the demurrer, and reply in ten days on payment of said costs ; if he does not so withdraw, then judgment for defendant on the demurrer, with costs.
    From the order entered, the plaintiff appealed to the court at general term.
    
      R. S. Guernsey, for the plaintiff, appellant.
    I. The court erred in claiming that there was a contract of bailment existing between plaintiff and defendant, and that the defendant’s counter-claim arose out of that contract. How could the defendant’s separate claim for wine and cigars arise out of the same contract as stated in the complaint or answer ? The relation of innkeeper and gnest alleged in the complaint was positively denied in the answer and counter-claim, and the relation of boarding-house keeper claimed by defendant under a specific contract for board separate from the wine bill (and these allegations must be taken as true on this demurrer), therefore, according to the answer, a bailment existed between the parties. As to the liability of innkeeper and bailee, see 33 N. Y., 571, 577; 36 Barb., 452-470.
    II. The court claims that this action is not one in tort, hence any counter-claim on contract is admissible. A claim for damages for the alleged negligence or fraud of a defendant is an action in tort, although arising out of contract (Keeler v. Clark, 18 Abb. Pr., 155; Ridder v. Whitlock, 12 How. Pr., 208; McDuffie v. Beddoe, 7 Hill, 578). So is an action against an innkeeper for loss (People v. Willett, 6 Abb. Pr., 37). Negligence is a misfeasance or malfeasance, and is an action for tort (Keeler v. Clark, 18 Abb. Pr., 155; Atlantic Ins. Co. v. McLoon, 48 Barb., 27). No counterclaim is allowed in actions for tort (Code, § 150; Fellerman v. Dolun, 7 Abb. Pr., 395; Gottler v. Babcock, 7 Id., 392; Pattison v. Richards, 22 Barb., 146; Donohue v. Henry, 4 E. D. Smith, 162; Schnaderbeck v. Worth, 8 Abb. Pr., 37; Askins v. Hearns, 3 Id., 187).
    III. Before the Code (§ 150) of 1852, no counterclaim could be allowed in an action (Pattison v. Richards, 22 Barb., 146). As to the right of recoupment and set-off before the Code, see Batterman v. Pierce, 3 Hill, 174. A counter-claim must now, in certain cases, arise out of the contract or transaction set forth in the complaint, or be connected with the subject of the action {Code, § 150). The answer must contain facts to show that it arises out of the same transaction; an allegation of that as a fact is not sufficient (Brown v. Buckingham, 11 Abb. Pr., 387; S. C. 21 How. Pr., 
      190; Fellerman v. Dolan, 7 Abb. Pr., 395). A counter-claim that arises out of the same transaction must operate to defeat, in whole or in part, plaintiff’s right to recover (Mattoon v. Baker, 24 How. Pr., 332). “An answer that does not meet this requirement is insufficient whether regarded as a defense or counter-claim ” (lb.). A boarding-house keeper, like any other person, is liable for negligence as bailee. This counterclaim is not connected with the subject of the action (malfeasance); and it does not arise out of the transaction (bailment) set forth in the answer. The' larger portion of the counter-claim is for wine and cigars, and the balance for board.
    IY. The allowance of a counter-claim for board or other indebtedness, in an action brought for the loss or taking of the goods of a guest, or boarder, or other person, would be virtually sustaining and justifying a defendant in taking possession of any property in any manner, for any indebtedness claimed to be due from plaintiff to him. Because a guest or boarder owes a bill, does the law allow his goods to be preyed upon and taken off by a landlord or boarding-house keeper and their servants, to satisfy any indebtedness for board, or wine and cigars? If this be law, a boarder’s room might be entered by a key when he is in bed and asleep (as in this case), and all his money, watch, and clothing, to the last garment, taken, and he then turned literally naked, out into the world; yet (this decision holds in effect), no action could be maintained, because he owed the boarding-house keeper debts for board and other things, amounting to more than the value of what was taken from him, and they could be counter-claimed in an action by him, and thus nullify his claim.
    Y. The defendant does not claim that the goods were taken because of any lien he had on them for board and the wine and cigars furnished plaintiff. If defendant holds or has taken goods for a lien, he must allege it, or it is waived (1 Cow. Tr., 330, and cases there cited).
    
      Malcolm Campbell, for the respondent; —
    Relied solely on the opinion of the court at special term.
   By the Court,

The order was affirmed, upon the ground stated in the opinion of Mr. Justice Jones at special term.  