63 N.Y.S. 978 | N.Y. App. Div. | 1900
This was an action of replevin. The complaint charged that the plaintiffs on or about the 5th day of May, 1899, were the owners and entitled to the immediate possession of certain personal property, ivliich the defendant then wrongfully took, and has since wrongfully and unlawfully withheld from the plaintiffs, notwithstanding a demand duly made therefor.
The answer, after alleging that the defendant, prior to the commencement of the action, had offered to deliver the property mentioned to the plaintiffs, ppon/payment by them of a certain sum alleged to be due for -storage, set up two counterclaims: (1) A claim for storage of the property mentioned in the complaint from the 5th to the 31st day of May, 1899. (2) A claim for damages alleged to have been sustained in removing from defendant’s premises, on the 31st day of May, 1899, the property mentioned in the complaint, and also for the wrongful removal, on that day, of certain property which belonged to the defendant.
The plaintiffs demurred to both counterclaims upon the ground that they were not of the character specified in section 501 of the Code of Civil Procedure, in that they did not tend to defeat or diminish the plaintiffs’ recovery, and that neither of them was a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiffs’ claim, and that neither of them was connected with the subject-matter of the action. The demurrer was overruled, and from the interlocutory judgment thereafter entered plaintiffs have appealed.
We are of the opinion that the demurrer should have been sustained. As to the first counterclaim — it does not arise out of • the
It follows that the judgment appealed from must be reversed, with costs, and the demurrer sustained, with costs, with leave to the-defendant to amend his answer within twenty days, on payment of costs in this court and in the court below.
Yan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ.,, concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend answer in twenty days on payment of costs in this court and in the court below.