131 Misc. 673 | N.Y. Sup. Ct. | 1928
The defendant in bis counterclaim is not seeking to recover damages for any breach of the covenant for quiet enjoyment, but for an independent tort of the plaintiff in cutting a fence permitting cattle to trespass. The defendant has not been evicted from any part of the premises which he leased from the plaintiff, and the counterclaim does not arise out of the transaction upon which plaintiff’s cause of action is based, nor is it connected with the subject of the action. No rule can be laid down which is an invariable test in all cases. A good guide, however, is whether or not proof of either cause of action necessarily involves an inquiry concerning the same transaction. It is obvious that in this case no such thing would occur. Proof of plaintiff’s cause of action would not involve the trespass set up in the counterclaim, and proof of the trespass would not involve the rent due. The rule set forth in the Civil Practice Act is a reciprocal one, and a counterclaim is not properly pleaded if, in an independent action thereon, the plaintiff’s cause of action could not be set up. If the defendant in this case had sued on the trespass, a counterclaim for rent would hardly be considered a proper counterclaim. (Adams v. Schwartz, 137 App. Div. 230; Boreel v. Lawton, 90 N. Y. 293; Fifth Ave. Building Co. v. Kernochan, 221 id. 370; Fuller Co. v. Manhattan Construction Co., 44 Misc. 219; Faber v. Phillips, 26 id. 723.)
These questions as to the propriety of a counterclaim will continue to arise until the profession has the courage to urge the enactment of provisions allowing parties to set up any cause of action that they may have against each other, leaving it to the
Counterclaim dismissed, and defendant remanded to a separate action thereon.
So ordered.
