
    The Mayor, Aldermen and Commonalty of the City of New York, Plaintiffs, v. The Parker Vein Steamship Company et al., Defendants.
    1. In an action on a bond given to secure rent reserved by a covenant in a loase, a demand against the plaintiff for a wrongful conversion in removing from the demised premises, fixtures placed there by the tenant, one of the defendants, but of which the lease did not contemplate the erection nor provide for the privilege of removal, is not available as a counterclaim.
    2. Such a demand cannot be made a demand arising on contract, within the meaning of subdivision 2 of section 150 of the Code of Procedure, by the fiction of waiving the tort and proceeding upon an implied promise to pay for the goods taken; but even if this could be done, there can be no recovery upon it as upon contract where it is alleged in the answer as a tort.
    3. Nor is such a demand a cause of action arising out of the contract or transaction set forth as the foundation of plaintiffs' claim, or connected with the subject of the action within the meaning of subdivision 1 of the same section.
    (Before Hoffman and Woodruff, J. J.)
    Heard, January 22;
    decided, June 15, 1861.
    Exceptions taken on the trial of this case were ordered to be heard in the first instance at General Term.
    The action was brought against the Parker Vein Steamship Company, and Hippolite Mali and Otis P. Jewett, on a bond for rent. The Steamship Company had leased from the plaintiffs certain piers in the city of Hew York, and the defendants, Mali and Jewett, had united with the Company as sureties in the bond to the plaintiffs to secure the payment of the rent.
    The Steamship Company did not defend the action; Mali and Jewett answered setting up a counterclaim for a conversion by the plaintiff, of fixtures belonging to the Company upon the demised premises.
    The cause was tried before Chief Justice Bosworth, and a Jury,. October 16, 1860; when the defendants admitted that- the rent claimed by the plaintiffs, amounted, with interest, to $3,349.98, and the plaintiffs then rested then case upon the pleadings. The defendants’ counsel then offered to prove the counterclaim set up in the answer, to which the Counsel for plaintiffs objected. The court sustained the objection, and the defendants’ Counsel excepted. The Court directed the Jury to find a verdict for the plaintiffs, for the sum above mentioned, and that entry of judgment be suspended, and the defendants’ exceptions be heard in the first instance at General Term.
    
      H. H. Anderson, for plaintiffs.
    
      J. M. Van Cott, for defendants.
   By the Court—Woodruff, J.

We are of opinion that the facts alleged in the defendants’ answer are not available to the defendants as a counterclaim within the meaning of that term,'as employed and defined in the Code; and therefore, whether they constitute a cause of action in favor of the Parker Vein Steamship Company or not, they cannot be used to defeat the plaintiffs’ recovery herein.

The plaintiffs’ action is brought upon a penal bond signed and sealed by all of the defendants, conditioned for the payment of the rent which, in a certain lease, was covenanted by the Parker Vein Steamship Company to be paid for the privilege of collecting the wharfage accruing from the use of certain piers by vessels occupying the same.

The action was, therefore, an action on contract.

The alleged counterclaim is simply and purely (if the facts alleged are a cause of action) a claim to recover damages for a tort. The allegation is, that the Parker Vein Steamship Company erected certain fixtures, &c., on one of the piers, of which fixtures the Company was owner, and was entitled to remove the same, and would have done so, but the plaintiffs forbade such removal, and prevented the same, and took possession of such fixtures, &e., &e., converted them to then own use, and the plaintiffs thereby became liable to account for the same and pay to the defendants the value thereof. How, if upon these facts the plaintiffs are liable for the value of the fixtures, that liability did not arise on contract. There was no provision in the so-called lease, nor in the bond, by which it was stipulated that the Company might erect anything on the pier, or that if they did so they might remove the same. The taking possession and conversion thereof to the plaintiffs’ use, therefore, no more created a cause of action arising on contract, than the seizure and conversion by the plaintiffs of any personal property of the Company found in any other place would have done. It was simply and only a tort. . Although it has been sometimes intimated that the injured party might waive the tort, and bring an action on an implied promise to pay for the goods taken, we think that a counterclaim, “ arising on contract,” cannot be made upon any such fiction.

Formerly it was held, that when goods so taken were sold, and the wrong-doer received the money, the owner had a right to treat that money as his own, and sue for it as so much money had and received; and this was the whole extent and the true limit of the rule that the owner might waive the tort and bring assumpsit.

If in modern times countenance has been given to the idea that the owner of goods, tortiously detained from him by "a wrong-doer, may sue for their value in an action which would have been termed assumpsit, we are of opinion that the Legislature, when a counterclaim was defined, in the second subdivision of section 150, as a cause of action arising on contract, did not mean a cause of action which was founded upon a tort, and where, in truth, no contract existed.

If we are correct in this, then the facts alleged did not constitute a counterclaim, available to the defendants in this action ; and, on the other hand, if this idea of waiving the tort and claiming the value of the property “in assumpsit,” or upon an implied contract to pay therefor, be entertained, then the case of Walter v. Bennett, (16 N. Y. R., 250,) is a direct authority established by the Court of Appeals, that when the cause of action is alleged as a tort, there can be no recovery as upon contract, although the facts alleged would have sustained such an action.- The rule thus settled is equally applicable to a counterclaim, which is in substance a complaint upon an affirmative cause of action on the part of the defendant.

This view is, therefore, equally fatal to the defendants’ claim in the present case.

The other clause of the section, defining a counterclaim, describes it as “ a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiffs’ claim, or connected with-the subject of the action.”

Now, the contract set forth in the plaintiffs’ complaint is the defendants’ express covenant to pay the rent accrued upon the plaintiffs’ lease to the Company. The subject of the action is either the rent itself or the claim of the plaintiffs thereto.

Neither the defendants’ title to the fixtures nor the plaintiffs’ conversion thereof, arose out of the lease or the covenant for the payment of the rent. Neither the lease nor the covenant contemplated nor provided for the erection of the fixtures, nor for any privilege of removing the same if erected. The Company did not bring them there in pursuance of the lease or covenant, nor did the plaintiffs convert them in violation of either.

It is true that but for the lease the defendants would have had no interest to promote by bringing them there, and no motive, therefore, to erect them. So, also, the seizure or the conversion thereof by the plaintiffs was not the result of the lease or covenant; and yet if they had not been upon that pier, it may be said that the plaintiffs would not have taken them. But the cause of ac ion (if any) was in all respects precisely the same as it would be had the plaintiffs taken possession of the like fixtures belonging to that Company at any other place whatever.

The fixtures were in no manner connected with the rent due to the plaintiffs, nor with the plaintiffs’ claim to such rent. Neither the erection of the fixtures nor the use nor enjoyment thereof could affect either. They may or may not have been useful to enable the Company to collect wharfage, though it is difficult for us to perceive how they would contribute to its increase. But if never brought there, the rent would have been the same and the plaintiffs’ title thereto the same.

The views expressed in Drake v. Cockroft, (4 E. D. Smith, 34 ;) Gleason v. Moen, (2 Duer, 639 ;) Bogardus v. Parker, (7 How. Pr. R., 305 ;) McKenzie v. Farrell, (4 Bosw., 202 ;) and Moffatt v. Van Doren, (Id., 609,) sustain these suggestions, and so in our judgment does the decision in The Xenia Bank v. Lee, (2 Bosw., 694.) In that case it is said that “ the right of the plaintiff to claim and the right of the defendant to counterclaim upon any given or supposed facts in controversy must, we think, be reciprocal.”

We think it clear that if the Parker Vein Steamship Company had brought their action, declaring in the terms of their answer for the wrongful taking and conversion of the fixtures in question, the plaintiffs could not, by way of counterclaim, have set up that that Company was indebted to them for rent under the grant of wharfage mentioned in the complaint.

We are not to be regarded as holding that, under the facts alleged in the answer, the plaintiffs are liable for the value of the fixtures in question, but we rest our decision upon the ground that the facts alleged do not constitute a cause of action that is the subject of a counterclaim which can be allowed in this action.

The plaintiffs should have judgment upon the verdict.  