
    Henry Smith, Appellant, v. The Rensselaerville Creamery Company, and Brook Sployd, Agent, Respondents.
    Third Department,
    March 10, 1909.
    Practice — appeal — new trial in County Court on appeal from Justice’s Court — defective pleading.
    Where an action is brought in a Justice’s Court for conversion, a counterclaim for sixty dollars for goods sold and delivered is demurrable in the absence of allegations showing that it arose out of the transaction set forth in the complaint or connecting it with the subject of the action. ■ . - -
    
      Upon an appeal from a judgment in favor of plaintiff the defendant is not. entitled to a new trial in the County Court based on such a counterclaim, end an order denying plaintiff’s motion to transfer the cause to the law calendar will be reversed.
    Appeal by the plaintiff, Henry Smith, from'an order of the County Court of Albany county, entered, in the office of the clerk of said county on the 28th day of April, 1908, denying the plaintiff’s motion to transfer the cause from the trial calendar to the law calendar of the Albany County Court.
    
      Smith O'Brien [Leopold Minkin of counsel], for the appellant.
    
      Arthur Helme, for the respondents.
   Cochrane, J.:

Plaintiff instituted this action in Justice’s Court for the wrongful and unlawful conversion of thirty dollars in cash, for which amount he demanded judgment in his complaint, and which amount he recovered. The answer of the. defendants was a general denial. The record discloses the following as having occurred during the course of trial: “ Defendant .moves to amend his pleadings "and claims to $60 — counterclaims for goodfe sold and delivered to plaintiff.” Strictly speaking, this seems to be only a motion to amend a pleading, and it does not appear that the motion was granted by the justice. The defendants, however, assuming that they had amended their answer, appealed to the County Court, and in their notice of appeal demanded a new trial based on such assumption. The justice returned the evidence taken before him.

Section 3068 of the Code of Civil Procedure permits an appellant a new trial in the County Court where “ the sum for which judgment was demanded by either party in his pleading exceeds fifty dollars,” and the appellant in his notice of appeal has demanded such new trial. Plaintiff contends that this counterclaim is not such a pleading as gives to the defendants the right to a new trial in, the County Court, and by motion sought to have the cause transferred-to the law calendar of that court so that it might be disposed of on questions of law only. That motion was denied by the County Court and plaintiff appeals. The question is no longer an open one, and plaintiff is clearly right in his contention.

In Hall v. Werney (18 App. Div. 565) it was said that “ an improper pleading cannot be made.the basis of a demand for a iiew trial in the County Court under the provisions of the Code applicable to appeals from judgments rendered by justices of the peace, and if an appeal is taken for a new trial based upon such improper pleadings the County Court may refuse a new trial and send the case to the law calendar to be heard simply as a question of law.” . And numerous cases are there cited holding the same proposition.

The complaint here is for conversion. The counterclaim, assuming it to be such, is for goods sold and delivered. Without a statement or allegation showing that it arises out of the transaction set forth in the complaint or connecting it with the subject of the action, it is clearly demurrable- and no evidence can be received thereunder. (Code Civ. Proc. §§ 2938, 2945, 501.) This rule applies to all counterclaims whether in tort or on contract in actions not on contract.

In Hall v. Werney (supra) the court cited with approval Green v. Parsons (14 N. T. St. Repr. 91), saying of that case: “ It was held that it must be alleged that the matters set out in the -counterclaim arise out of the transaction which is the foundation of the plaintiff’s claim, or that it is connected with the subject of it, or the answer would be insufficient on demurrer. -This allegation is wanting in the answer before us. The words subject of the action ’ mean the facts constituting the plaintiff’s cause of action.”

In Hinkley v. Troy & Albia R. R. Co. (42 Hun, 281) an improper counterclaim was sought to be made the basis of a new trial in the County Court. But the court said: “ The complaint admitted of no counterclaim, especially not a counterclaim in tort; certainly not unless the alleged counterclaim arose out of, or was connected with, the transaction set forth in the complaint as the foundation of the plaintiff’s claim. (Code Civil Pro. §§ 2945, 501, 502.)' But the defendant’s counterclaim was not so pleaded. The fact was not so, as stated, non constat, but that the alleged counterclaim grew out of another and distinct transaction from that counted on in the complaint. Indeed, it is so pleaded, and might be sustained by proof of an entirely different occurrence. To make it admissible in any possible view of the subject as a counterclaim in this action, the fact should have been averred that it grew out of, or was connected with, the transaction set forth in the. complaint as the foundation of the plaintiff’s claim. The counterclaim then being inadmissible as a pleading in the case, could not-be made1 the basis of a demand for a new trial in the appellate court. (Harvey v. Van Dyke, 66 How. Pr. 396, and cases there cited.) ”

It has been held that when the counterclaim is sufficient and proper upon its face, although it.may be false in fact and pleaded for the mere purpose of obtaining a new trial on appeal, it is nevertheless sufficient for that purpose. But that rule has no application where the counterclaim is demurrable, or when evidence could hot be received thereunder,. Such a case was Baum's Castorine Co. v. Thomas (92 Hun, 1), where the distinction was pointed out, the court saying: It has been held that when the counterclaim is clearly demurrable, as in Denniston v. Trimmer (27 Hun, 393) and in Moore v. Trimmer (23 N. Y. St. Repr. 2), or when the action is .such that a counterclaim is not permitted in it, as in Harvey v. Van Dyke (66 How. Pr. 396) and in Hinkley v. Troy & Albia R. R. Co. (42 Hun, 282), it does not warrant a new trial in the County'Court, and that ¡a motion to transfer the... case from the trial calendar to the law calendar is proper ¡iractice and should be granted.” .

In the'present case the counterclaim is clearly insufficient for any purpose. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements,. and the motion granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  