¶1The judgment of' the County Court and the order of May 18, 1904, should be reversed, with costs, and the ease held for trial in County Court.
¶2*602There were two' trials in Justice’s Court.. The first "one resulted in' a" disagreement of the jury. The original- complaint was in writing, but -is not contained in' the - record. ' The answer thereto Was merely a general denial. Before the second trial amended pleadings Were made and filed, which- are in the record. When the second trial was -Called the defendant did not appear, and the plaintiff gave. his evidence and took judgment by default. The . defendant appealed from such judgment to the County Court arid demanded a new trial in the appellate court, under section 3068 of the-Code of Civil Procedure, but required a.return of the evidence táken át the trial in Justice’s Court.' The return was made and the evidence was included therein. The County Court held the appeal was upon -questions of law -only, that no -new trial could be had in , Coutity Court, and upon .the evidence-and proceedings affirmed the judgment of Justice’s Court.- - The. plaintiff in his amended complaint demanded judgment for forty-nine dollars only. The- defend- . ant in his amended answer set up a counterclaim and demanded judgment therein for sixty-fo'ur„dollars. The question of a new trial in County Court Was, therefore,.’dependent upon the counterclaim and whether it was "properly interposed in the. case. The amended Complaint set out a cause of action'in tort, viz., the sale of a horse, the making of false- arid fraudulent representations- on the sale, and the - reliance of the plaintiff thereon, and resulting damages. The answer admitted the" sale of the horse and 'denied all other-allegations in the complaint, and then set up a counterclaim for balance of the purchase price of the horse, unpaid. This counterclaim was upon, contract; the plaintiff’s cause of action was in tort, b.ut both causes of action arose, out of the same transaction, the sale of the horse, and the counterclaim was, therefore, properly' interposed under sections 2945 and 501 and 502-of the Code of Civil Procedure. .This rule was recognized- in Green v. Parsons (27 N. Y. Wkly. Dig. 544) ; Hall v. Werney (18 App. Div. 565) ; Carpenter v. Manhattan Life. Ins. Co. (93 N. Y. 552).
¶3-If the plaintiff’s cause of action was merely for breach of contract of warranty, then clearly the counterclaim on contract .also was permissible- under the sections of the Code referrecT to..
¶4There is another view of this casé which would require a reversal of the judgment of the County Court, though not the order requir*603ing the appeal to be regarded as pne on questions of law only, and not for -a new trial. The complaint, as we have said, was one in tort, but the proof given before the court was merely of a breach of warranty. The judgment of the justice was not, therefore, supported.by the evidence under the pleadings and would have to be reversed for that reason. If the complaint should be regarded as in contract merely, breach of warranty, the evidence would support it, but in that event the counterclaim being on contract, would certainly entitle the defendant to a new trial in County Court, and the-judgment of the County Court and the order of May eighteenth would have to be reversed for that reason.
¶5We think, however, whether the complaint was on contract or in tort, the counterclaim was properly interposed, and the appeal to the County Court entitled the defendant to a new trial in that court.
¶6All concurred.
¶7Judgment of County Court and order of May 18,1904, reversed, with-costs, and case held for trial in County Court.