
    LITTMAN v. COULTER.
    
      N. Y. City Court; Special Term,
    
    
      May, 1889.
    1. Pleading; counterclaim.] Under Code Civ. Pro. § 501, in an action on contract, damages for conversion may be counterclaimed if both claims arose out of the same transaction.
    ■2. Counterclaim ; same transaction.] In an action for rent, a cause of action for taking defendant’s goods and holding them for or applying them on the rent sued for, is to be deemed as arising out of the same transaction, within the rule as to counterclaim.
    Demurrer to answer.
    Morris Littman sued Mary M. Coulter, as administratrix, •etc., of Thomas Coulter, for one month’s rent.
    The defendant denied the liability and set up in her .answer a counterclaim for fixtures in the premises belonging to the defendant, which the defendant alleged the plaintiff •converted.
    The plaintiff demurred to the counterclaim on the ground that it was not one of those specified in Code Civ. Pro. :§ 501.
    
      Adolph L. Sanger, for the plaintiff.
    
      William L. Flagg, for the defendant.
   Holme, J.

A cause of action for conversion may be •set up as a counterclaim to a cause of action on contract provided the two causes arose out of or were connected with the same transaction (Weston v. Turver, 17 N. Y. St. Rep. 502; Farrel v. Krone, 24 N. Y. Weekly Dig. 89; Morris v. Emmons, 4 N. Y. St. Rep. 882; Cass v. Higenbotam, 100 N. Y. 248). The old cases to the contrary have been repeatedly overruled. No other construction of section 501 of the Code seems to me reasonable.

The difficulty in cases like the one before me arises from the diverse views that may be entertained as to whether the facts constituting the counterclaim arose out of the transaction referred to in the complaint.

In this case the plaintiff sues for rent of certain premises the defendant sets up as a counterclaim damages for conversion by plaintiff of certain articles which were on the same premises, and which plaintiff is alleged to have taken, appropriated and applied on account of the rent claimed. The defendant in effect alleges that the plaintiff claims a lien for the rent on the property alleged to have been converted. It is difficult for me to see how a cause of action thus arising is not connected with the occupation of the premises and the claim for rent which constitutes this transaction, out of which plaintiff’s cause of action arose. It cannot of course-be said to be connected with the original hiring (except perhaps very remotely) which took place a year before the alleged conversion, but the action is for rent for the last month of the occupation of the premises, at the end of which plaintiff is alleged to have taken possession and assumed a lien on the property of the defendant for the rent due. If the rent was due the plaintiff may have had a lien, and if there was no rent due, as defendant claims, the taking and detention of the property were wrongful, and I do not see why the purpose contemplated by section 501 will not be effected by disposing of these two questions in the same-action ; it seems to me that they arise out of the same transaction.

Demurrer overruled, with leave to plaintiff to reply within six days on payment of costs.  