Eckert v. Gallien

40 A.D. 525, 58 N.Y.S. 85

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1899
• Status: Published

Opinions

Ingraham, J.:

It was conceded in the court below that the action is in tort. It was so found by the court, and that conclusion is not challenged upon this appeal. The counterclaim demurred to alleges as a counterclaim a: cause of action on 'contract not arising out of the transaction alleged in the complaint, and thus, within section 501 of the Code, it is not properly pleaded as a counterclaim to the cause of action set up in the complaint. The demurrer was overruled, however, upon the ground that it is a nullity in that it is stated in the language of subdivision 4 of section 495 of the Code of Civil Procedure and does not distinctly specify the objections to-the counterclaims and point out specifically the particular defect relied upon, as required by sections 490 and 496 of the Code. The plaintiff demurs to the counterclaim on the ground “ that said counterclaim is not of the character specified in section 501 of the Code of Civil Procedure.” By section 501 of the Code it is provided that a counterclaim “ must be one of the following causes of action against the plaintiff * * * :

“ 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.

“ 2. In an action on contract, any other cause of action on contract, existing at the commencement of the action.”

A cause of action that can thus be set up as a counterclaim in an action in tort must be a cause of action arising out of the contract or transaction set forth in the complaint or connected with the subject of the action. By section 496 of the Code it is provided that “ a demurrer taken under the last section (§ 495) must distinctly specify the objections to the counterclaim; otherwise it may be disregarded. The mode of specifying the objections is the same as where a demurrer is taken to a complaint.” The mode of specifying the objections where a demurrer is taken to the complaint is specified in section 490 of the Code, which provides that “ an objection, taken under subdivision first, second, fourth or eighth of section four hundred and eiglity-eight of this act, may be stated in the language of the subdivision ; an objection taken under either of the other subdivisions must point out specifically the particular defect relied upon.”

The various objections that may be taken by demurrer to a counterclaim are specified in section 495. One objection that may be taken is that specified in subdivision 4 of that section, viz., “ That the counterclaim is not of the character specified in section 501 of this act,” and, it seems to'me, when, that objection is thus, taken, the pleader distinctly specifies the objection to the counterclaim. To make this objection available, a plaintift" must state-in the demurrer that the cause of action set up as a counterclaim is not within either of the subdivisions of section 501 of the Code, and it does not make the objection more specific to say that the cause of action set up as a counterclaim does not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action;, and that the action not being an action on contract, a cause of action, on contract existing at the commencement of the action not arising-out of the contract or transaction set forth in the complaint, cannot he set up as a counterclaim. He does say just that, when he alleges, in his demurrer as an objection to the counterclaim, that it is not of the character specified in section 501. Nothing that the plaintiff could say would -make the objection more specific. The specific, objection to this counterclaim is that it is not one of the character-specified in section 501 of the Code, and this objection is specifically taken by the plaintiff by this demurrer. Certainly, repeating the-language of section 501 of the Code would not more distinctly specify the objection than stating that the counterclaim was not of the character specified in that section.

None of the cases relied on by the court below, or by the respondent upon this appeal, are in point. The observation of this court, in Weeks v. O'Brien (25 App. Div. 208), did not decide this question, or state that a demurrer to a counterclaim, upon the ground that it was not of a character specified in section 501 of the Code, was not sufficient without setting forth the particular nature of the cause of action and the counterclaim sought to be pleaded.

We think,, therefore, that an objection that a counterclaim is not of the character specified in section 501 of the Code of Civil Procedure distinctly specifies the objection within the meaning of section 496 of the Code; and it follows that the judgment must be reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to amend within twenty days, upon payment of costs in this court and in the court below.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; O’Brien, J., dissented.