Schaefer v. Empire Lithographing Co.

Appellate Division of the Supreme Court of the State of New York

Decided July 1, 1898

Appellate Division of the Supreme Court of the State of New York · decided 1898-07-01

Appeal by the defendant, The Empire Lithographing Company, from an. interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of’ Queens on the 26th day of November, 1897, upon the decision of the court rendered after a trial at the Queens County Special Term,; sustaining the plaintiff’s demurrer to the second separate and distinct defense contained in the amended answer of the defendant and therein designated as…

Decided 1898-07-01

Cullen, J.:

¶1The complaint is plainly in tort for the conversion of the property, and not on contract for a breach of the agreement for storage. A demand for the value or price of the storage is not a proper counterclaim in such an action. It does not arise from the same transaction as-that from which the plaintiff’s claim springs. The plaintiff’s cause of action. is based on the sale and disposition of the property by the defendant. The defendant’s claim is- founded! on its services in storing the property previous to the time of the alleged conversion. Plainly, the storage of the property before it was sold and the sale, of the property were different transactions..

¶2The interlocutory judgment appealed from should be affirmed, with costs.

¶3All concurred.

¶4■ Interlocutory judgment affirmed, with costs.