Art. 6. Joinder of Causes of Action.

Causes of action against a landlord for not complying with terms of agreement, and for entering premises and removing plaintiff's property, cannot be joined. Keep v. Kauffman, 56 N. Y.

332.

Trespass and slander of title cannot be joined. Dodge v. Colby, 37 Hun, 515, 108 N. Y. 445.

Cause of action alleging plaintiff bet money with defendant upon the event of a horse race and lost it, and a cause of action that plaintiff was induced to make the bet by false representations respecting the horse that won the race, made by defendant and others with whom defendant conspired to defraud plaintiff, cannot be united, the first being on contract and the second on tort. It was held that, although arising out of the same transaction, they cannot be united because not belonging to either of the subdivisions specified in section 484. Raynor v. Brennan, 40 Hun, 60. This case does not seem to have been subsequently cited.

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"The principle is well settled that an entire indivisible demand cannot be split up into several claims so as to make it a subject of two or more separate actions. It follows, as the result of this rule, that, where a claim arises upon a contract, or from a tort, the entire claim must be prosecuted in a single suit, and several suits cannot be brought for separate parts of such claim. Where several suits are brought, the pendency of the first may be pleaded in abatement of the other suit or suits, and a judg ment in either will be a bar to a recovery in any other suit." Nathans v. Hope, 77 N. Y. 420, citing Secor v. Sturgis, 16 N. Y.

548.

In Perry v. Dickerson, 85 N. Y. 345, it was held that a judgment in an action to recover damages for alleged wrongful dismissal from defendant's employment before the expiration of the stipulated term was not a bar to a subsequent action to recover wages earned during the time plaintiff was actually employed, and which were due and payable before the wrongful dismissal; that the two claims constituted separate and independent causes of action upon which separate actions were maintainable.

The latter case was distinguished, upon the authority of Nathan v. Hope, supra, in Reilly v. Sicilian Asphalt Paving Co., 14 App. Div. 242, 43 N. Y. Supp. 536, where it was held that where damage both to persons and property result from a single tortious act, it cannot be made the subject of two actions. This decision

Art. 6. Joinder of Causes of Action.

was followed by one in the same case, 31 App. Div. 302, 52 N. Y. Supp. 817, reversed 170 N. Y. 40, holding that an injury to the person and an injury to property, although resulting from the same tortious act, constitute different causes of action, and a judgment for damages to property recovered in one court and the satisfaction thereof is not a bar to the maintenance of an action in another court for the injury to the person arising from the same act, Cullen, J., in the opinion of the court, saying that the question before the court has been the subject of conflicting decisions in different jurisdictions.

This case is reported on first appeal to the Appellate Division February, 1897, in 4 N. Y. Annot. Cas. 209, and is followed by a note on "Separate actions for injuries to personal property from the same tort."

SUBDIVISION 2.

Counterclaims Arising in Tort.

Section 501, subdivision 1, provides that a counterclaim other than in contract must be 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.

It is the policy of the law, even where the complaint is in tort, if the counterclaim interposed either arose out of the transaction, which is the foundation of the plaintiff's cause of action, or is connected with it, that the entire controversy should be wound up in one action. O'Brien v. Dwyer, 76 App. Div. 516, 78 N. Y. Supp. 600.

The theory of the Code is to authorize all causes of action, whether arising out of contracts or torts, to be litigated in the same action. Smith v. Rowe, 49 App. Div. 583, 64 N. Y. Supp. 389.

It is well settled by numerous authorities that in an action for tort no counterclaim can be allowed which does not arise out of the same transaction. People v. Dennison, 84 N. Y. 273, affirming 8 Abb. N. C. 129, affirming 59 How. 157; Eckert v. Gallien, 24 Misc. Rep. 485, 53 N. Y. Supp. 879.

In McQueen v. New, 87 Hun, 271, 33 N. Y. Supp. 395, it was held that counterclaims, in order to be interposed, must be of the character specified in section 501, and that where an action sounded in tort, the defendant cannot be allowed to interpose a counterclaim which did not arise out of the-same transaction.

Where the complaint is in tort, the counterclaim may be properly

Art. 6. Joinder of Causes of Action.

set up where the plaintiff's cause of action and the matter set up in the counterclaim originated in the same transaction. Numan v. Wolf, 73 App. Div. 38, 76 N. Y. Supp. 371.

That a counterclaim arising out of the same transaction or contract as the tort sued upon may be properly set up is held in Savage v. City of Buffalo, 50 App. Div. 136 (138), 63 N. Y. Supp. 941; Eckert v. Gallien, 40 App. Div. 525, 58 N. Y. Supp. 85; D'Auxy v. Dupre, 47 App. Div. 51, 62 N. Y. Supp. 244.

In an action upon a promissory note damages for the conversion by the holder of property pledged to him as security for the payment of the note may properly be pleaded as a counterclaim, and the amount thereof must be taken into consideration in determining whether a judgment in such action is reviewable in the Court of Appeals. Cass v. Higenbotam, 100 N. Y. 248.

In Glenn & Hall Mfg. Co. v. Hall, 61 N. Y. 226 (235), Dwight, C., considers the provisions of the Code relative to counterclaim and discusses "What is a cause of action connected with the subject of the action " so as to authorize a counterclaim.

The right to interpose a counterclaim arising out of the same transaction, where the complaint is in tort, is considered and cases collated and discussed and distinguished in Empire Feed Co. v. Chatham Nat. Bank, 30 App. Div. 476, 58 N. Y. Supp. 387.

The first subdivision of section 501 of the Code does not limit the right of a defendant to interpose counterclaims to an action brought on contract, but gives a right to interpose counterclaims in an action brought to recover damages for the tort, if the causes of action set out in the complaint and in the answer arise out of the same contract or transaction, or relate to the same subject, nor does it direct that the cause of action set up as a counterclaim must arise out of a contract, but it authorizes the interposition of causes of action arising out of torts as counterclaims. In an action to recover damages for a tort, a counterclaim arising out of a contract connected with the subject of the action may be pleaded, and in an action on a contract, damages arising out of the tort of the plaintiff, if the two causes of action are connected may be interposed as a counterclaim. Ter Kuyle v. Marslan, 81 Hun, 420, 31 N. Y. Supp. 5.

In an action to compel defendants to deliver to plaintiff certain bills of lading, a claim on the part of defendant for the value of the identical goods which are the subject of the action, is a cause

Art. 6. Joinder of Causes of Actfon.

of action arising out of the transaction set out in the complaint as the foundation of the plaintiff's claim; or is at least connected with the subject of the action and is a counterclaim. Thompson v. Kessel, 30 N. Y. 383.

In an action in the nature of trover by plaintiffs who had indorsed certain bills of exchange, brought to recover the value thereof from defendants in whose possession they were and who claimed title thereto through the plaintiff's indorsement, the defendants were held to be at liberty to set up as a counterclaim the liability of plaintiff as indorsers of the bills, and the right to recover against them as such indorsers. Xenia Branch of State Bank of Ohio v. Lee, 2 Bosw. 694.

Same rule was laid down in action to recover possession of personal property. Brown v. Buckingham, 21 How. 190.

In an action to recover damages for an alleged assault and battery, the defendant may, under section 501 of the Code, interpose as a counterclaim, an assault and battery committed upon him by the plaintiff during the affray out of which the plaintiff's cause of action arose. The word "transaction" used in subdivision 1 of that section includes torts. Where causes of action, one set out in the complaint and the other in the answer as a counterclaim, are so connected that they must be determined on the same evidence, they should be litigated and determined in one action, although a recovery cannot be had in favor of either party without a finding that would wholly defeat the other party's alleged cause of action. Deagan v. Weeks, 67 App. Div. 410.

Where it was alleged in the answer that defendant was induced to make a compromise and give a bond by the false and fraudulent representations of plaintiff made with intent to deceive him, and that, as a consequence of such fraud, the defendants sustained damages, it was held that the alleged cause of action of the defendant arose out of the transaction or contract of which the bond set forth in the complaint, as the foundation of plaintiff's claim, was the product, and the making of it constituted a bar, and such cause of action alleged by the defendant comes within the meaning of the counterclaim as defined by the statute. Thomson v. Sanders, 118 N. Y. 252.

In an action for conversion of a quantity of wood defendant set up as a counterclaim that he held a bond and mortgage as a collateral upon certain lands which were insufficient security, and the obligor was insolvent. The plaintiff, being second mortgagee in pos

Art. 6. Joinder of Causes of Action.

session of these lands, with a knowledge of the facts and with intent to deprive defendant of the security thereon, wrongfully cut the wood in question from the land. That on foreclosure of defendant's mortgage and sale thereunder, a large deficiency remained. It was held that defendant's claim was connected with the subject of the action so as to constitute a proper counterclaim, the rule being that the counterclaim must have such a relation to the subject of the action that it will be just and equitable that both should be settled by one litigation, and that the claim of the defendant should be offset against or applied upon that of the plaintiff. Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552.

In an action for rent defendant may set up a counterclaim for conversion of articles alleged to have been taken from the premises by plaintiff and wrongfully applied on the rent claimed - the two causes arise out of the same transaction. Littman v. Coulter, 7 N. Y. Supp. 1, 23 Abb. N. C. 60.

In an action to recover for sales made to defendant by plaintiff's assignors, a counterclaim that defendant was defrauded by plaintiff through said sales and others, in which plaintiff's assignors, in conspiracy with plaintiffs, one of whom acted as purchasing agent for defendant, overcharged defendant, is "connected with the subject of the action." Siebrecht v. Siegel-Cooper Co., 38 App. Div. 549, 56 N. Y. Supp. 425.

In an action to recover a chattel, a claim for repairs made on it at the owner's request is sufficiently connected with the subject of the action. Cooper v. Kipp, 52 App. Div. 250, 65 N. Y. Supp. 379. Where a tenant suffered constructive eviction by reason of the unhealthful condition of the premises, owing to which his family became ill, a claim for expense of moving, medical attendance, etc., arises out of the same transaction as is set forth in a complaint by the landlord in his complaint for rent accruing after the eviction and is a proper subject of counterclaim. Ramoine v. Brewster, 27 N. Y. Supp. 138, 68 St. Rep. 17.

In an action for construction of a will and to have the title of lands adjudged to be in plaintiff, defendant alleged as counterclaims that plaintiff had illegally and improperly collected rents arising out of the trust property in question and converted the same to his own use. This was held to constitute a valid counterclaim.

O'Brien v. Garniss, 25 Hun, 446.

A counterclaim made for false representations in action for breach of covenant on exchange of real estate may be interposed.