Cupi v. Craftman's Club

33 Misc. 757, 67 N.Y.S. 956

Opinion

Giegerich, J.

The action is to recover $204, the value of certain goods sold and delivered by the plaintiff to the defendant. The answer, in addition to a general denial, sets up a counter-claim for „$23"8, as -follows: One hundred and eighty-eight dollars for injury to real property, caused by the alleged removal by the plaintiff of his fixtures therefrom, and fifty dollars for the plaintiff’s share of the Croton water rent of said premises while occupying the same -as a tenant of tire defendant.

Upon the trial the parties agreed that the plaintiff’s share of said water rent was forty-five dollars, and the defendant admitted the correctness of plaintiff’s claim, except as to an item for a range amounting to the sum of forty-five dollars, which the latter conceded was not delivered to the defendant.

The justice dismissed the remainder of the counter-claim, and rendered judgment in favor of the plaintiff for the full amount of his claim, less thirty dollars for a range and forty-five dollars for plaintiff’s share of the water rent. The defendant thereupon applied to this court. We think the justice properly dismissed the counter-claim for injury to real property, since it proceeded not upon contract, but in tort (Code Civ. Pro. § 3343, subd. 10), and did not arise out of the transaction set forth in the complaint, nor was it connected with the subject of the action. Code Civ. Pro. § 501, subd. 2; Western Union Tel. Co. v. Milliken, 14 Daly, 170; De Forest v. Andrews, 27 Misc. Rep. 145.

The judgment should, therefore, be affirmed, with costs.

Beekman, P. J., and O’G opa fan, J., concur.

Judgment affirmed, with costs.