Schaefer v. Empire Lithographing Co.

28 A.D. 469, 51 N.Y.S. 104

Opinion

Cullen, J.:

The complaint is plainly in tort for the conversion of the property, and not on contract for a breach of the agreement for storage. A demand for the value or price of the storage is not a proper counterclaim in such an action. It does not arise from the same transaction as-that from which the plaintiff’s claim springs. The plaintiff’s cause of action. is based on the sale and disposition of the property by the defendant. The defendant’s claim is- founded! on its services in storing the property previous to the time of the alleged conversion. Plainly, the storage of the property before it was sold and the sale, of the property were different transactions..

The interlocutory judgment appealed from should be affirmed, with costs.

All concurred.

■ Interlocutory judgment affirmed, with costs.