116 N.Y.S. 1115 | N.Y. App. Div. | 1909
The complaint shows .that the plaintiff is a dealer jn circus and show tents, poles, .seats, etc. Upon the 20th day of May, 1908, he entered into a contract with one Mrs. B. ,F. Mitchell for the sale' of a complete outfit of tents for the performance of Uncle Tom’s Cabin and of accessories thereto. The said vendee was to pay the sum of $250 down and $2,5 per week thereafter until the- sum of $600 was paid, until which time the title was to remain in the plaintiff. On or about the 2d day of July, 1908, this defendant assumed the contract-of the vendee. About the 15th day of July, 1908, tlie defendant without the/knowledge or consent of- the plaintiff as alleged in the complaint, shipped to the plaintiff at Northville part ■of the tenting and other paraphernalia; but a part thereof was riot returned after demand, the value' of such part being $100. The complaint alleges that -the part .that wa.s ¡returned was unlawfully and wrongfully damaged in the suin of $100, and there is a further claim of $62.80 for freight and cartage upon the same. There is a demand for judgment for $262.80. The answer admits the contract with Mrs. Mitchell as to certain personal property and -alleges the payment by Mrs., Mitchell of $250 thereon ; admits, the assumption .by defendant of the obligations of said Mrs. Mitchell on or
To this counterclaim neither reply nor demurrer has been served, and the- order appealed from denies defendant’s motion for judgment thereupon.
A failure- to- demur or to-reply undoubtedly admits the allegations of the counterclaim. Such failure, however, does- not admit- that the- counterclaim was properly interposed. The provisions of sections 498 and 499 of the Code of Civil Procedure-refer to objections to the complaint and not to objections to the counterclaim. (lipman v. J. A. I. Works, 128 N. Y. 58; Spofford v. Rowan, 124 id. 108.) If, therefore, the counterclaim were improperly interposed in this action, the motion for judgment thereupon was properly denied.
It is assumed by both counsel-upon-the argument that the complaint states a cause of' action for a tort, for a wrongful conversion and a wrongful trespass,' and it seems to be agreed that unless this causé of action arose out of the contract or transaction set forth in the complaint as a foundation of plaintiff’s claim, or be connected with the subject of the action, the counterclaim was not properly interposed. It is insisted, however, upon the part of the defendant that this counterclaim complies in all respects with
All concurred. *
Order affirmed, with ten dollars costs and disbursements.
See-Code Proc. § 150, as amd.-by Laws of 1853, chap. 393.—[Rep.
See respectively 3 R. S. 301, §§ 50, 49.— [Rep.