Art. 6. Joinder of Causes of Action. So also in an action for the price of stock. Kingsland v. Haines, 62 App. Div. 146, 70 N. Y. Supp. 873; Delano v. Rice, 21 Misc. Rep. 714, 48 N. Y. Supp. 130, affirmed in 23 App. Div. 327, 48 N. Y. Supp. 295. So also for usury and cloud of title in an action for foreclosure. Queen City Bank v. Brown, 75 Hun, 259, 26 N. Y. Supp. 1016; Myers v. Wheeler, 24 App. Div. 327, 48 N. Y. Supp. 611. In an action to recover damages for the conversion of a promissory note made by plaintiff and also of certain collaterals, defendant may properly interpose a counterclaim setting up the note and its nonpayment at maturity, and asking to recover the amount due thereon with interest, although, after the note became due, plaintiff had tendered defendant the amount due, and demanded the note with the collaterals which the defendant refused to surrender. Empire Feed Co. v. Chatham National Bank, 30 App. Div. 476, 52 N. Y. Supp. 387. The general rule undoubtedly is that in an action for conversion, a counterclaim disconnected with the cause of action is not allowable. Empire Feed Co. v. Chatham National Bank, 30 App. Div. 476, 52 N. Y. Supp. 387. In an action sounding in tort defendant cannot be permitted to interpose a counterclaim unless it is within the provisions of section 501. Davis v. Aikin, 85 Hun, 554 (556), 33 N. Y. Supp. 103; Rochester Distilling Co. v. O'Brien, 72 Hun, 462, 25 N. Y. Supp. 281. In Briton v. Ferrin, 171 N. Y. 235, it was held that the relation between a commission agent and his principal is fiduciary, and that the proceeds of sales made by the agent belong to the principal, who may reclaim them so long as their identity is not lost, subject to the right of the bona fide purchaser for value; that where, under such circumstances, the agent, upon demand, refuses to surrender such proceeds, he will not be permitted in an action by the principal to defeat or diminish a recovery therefor by producing a claim of a third person and interposing it as a counterclaim, for the reason, among others, that the action is one for tort and secures to the plaintiff the same rights and remedies that exist as to other wrongs of a similar character, the counterclaim not arising out of the same transaction. In Rothschild v. Whitman, 132 N. Y. 472, plaintiffs brought an action for false imprisonment, a counterclaim was sought to be Art. 6. Joinder of Causes of Action. set up by way of a cause of action for damages caused by deceit in the purchase of goods on credit. Court held that while the deceit was the inducement to the action and duress, it arose out of neither because it preceded both and existed independently of both. That each was a separate and distinct wrong and transaction by itself. In an action brought for the conversion of property by defendant after it had been stored with him, a demand for the value of storage is not a proper counterclaim. It does not arise in the same transaction as that from which the plaintiff's claim springs. Schaefer v. Empire Lithographing Co., 28 App. Div. 469, 51 N. Y. Supp. 104. In slander in charging plaintiff with stealing wood from defendant and being a thief, defendant set up that at the time referred to plaintiff was on defendant's premises removing wood therefrom without his consent; that he directed him to desist, whereupon plaintiff charged defendant with being a wood thief and stealing plaintiff's wood. That this was part of the same conversation upon which plaintiff based his cause of action and arose out of the same transaction. Held, that the slander so pleaded as counterclaim did not arise out of the transaction set out in the complaint. Sheehan v. Pierce, 53 St. Rep. 438, 23 N. Y. Supp. 1119. Where plaintiff sued for articles put in defendant's store, and defendants by way of a set-off claimed that in putting in said articles plaintiff removed and appropriated other articles; it was held not to be a proper counterclaim. Starr Cash Car Co. v. Reinhardt, 2 Misc. Rep. 116, 20 N. Y. Supp. 872, 49 St. Rep. 228. In Marshall v. Cohen, 11 Misc. Rep. 398, 32 N. Y. Supp. 283, it was held that in an action to foreclose a mechanic's lien, counterclaim for damages granted on false representations could not be interposed. Where property was unlawfully withheld after demand and a counterclaim filed for storage, such counterclaim was held improperly pleaded. Bernheimer v. Hartmayer, 50 App. Div. 316, 63 N. Y. Supp. 978. Plaintiff's complaint alleged that under color of a contract defendant fraudulently obtained money from plaintiff by means of misrepresentation; defendants set up as a counterclaim a balance due them from the plaintiff for work done under the Art. 6. Joinder of Causes of Action. contract. Held, that the cause of action set up as a counterclaim did not arise out of the transaction upon which plaintiff's claim was founded. People of the State of New York v. Dennison, 84 N. Y. 272. A tenant in an action for rent may not set up a counterclaim for charges caused by alteration of the premises, made by the landlord. Faber v. Phillips, 26 Misc. Rep. 723, 56 N. Y. Supp. 1028. It was held that the counterclaim did not arise out of the contract or transaction set forth in the complaint and was not connected therewith. In an action for trespass upon plaintiff's land and injury thereto, defendant alleged his right to use the premises as a highway and claimed damages for its obstruction by plaintiff. This was held not to arise out of the same transaction, and not connected with the subject of the action. Hall v. Werney, 18 App. Div. 565, 46 N. Y. Supp. 33. In replevin against a volunteer taking charge of goods defendant cannot plead storage or money advanced to enable plaintiff to buy the goods, or due for labor thereon as counterclaims, because they do not arise from nor were connected with the subject of the action. Lyungstrandh v. William Haaker Co., 16 Misc. Rep. 387, 38 N. Y. Supp. 129. Where vendors brought replevin against the receiver of an insolvent corporation to recover certain goods alleged to have been obtained by the firm through fraud, and to have thus come into the hands of the receiver, a counterclaim alleging that the plaintiff did not seize the goods described in the requisition to him but took a distinct lot of goods which never belonged to plaintiffs, the vendors, is demurrable as the counterclaim does not arise out of the transaction set forth in the complaint. Marshall v. Friend, 35 Misc. Rep. 101. Where, in an action of ejectment, plaintiff claimed title under a devise in a will by which a legacy was given to one of the defendants and made chargeable upon the real estate in question, it was held, that the legacy did not constitute a counterclaim, and that plaintiff was not required to demur to the answer setting it up as a counterclaim in order to raise the question, nor did he, by replying, waive his right to take the objection. Dinan v. Coneys, 143 N. Y. 544. In Caponigri v. Altieri, 165 N. Y. 255, the court refused to Art. 7. Enforcement of Remedies in Actions for Torts. consider a counterclaim upon appeal, where action was brought for penalty against bankers, on the ground that it could not be alleged for the first time on appeal. ARTICLE VII. ENFORCEMENT OF REMEDIES IN ACTIONS FOR TORTS. SUBDIVISION 1. Methods for enforcement of rights. 2. Attachment 3. Arrest pending the action 4. Execution against the person SUBDIVISION 1. Methods for Enforcement of Rights. PAGE. 239 240 241 243 245 The methods provided by law for the enforcement of rights in actions for torts are even more varied than the remedies by differing forms of action. There exists the remedy by attachment of goods, and arrest and bail, as provisional remedies for the protection of plaintiff before judgment. In equitable actions to restrain torts, set aside fraudulent conveyances, or obtain equitable relief of any kind, the judgment is enforced in the usual manner by which a court of equity compels performance of its decrees. Code, § 1241. The enforcement of decrees in equity is an integral part of equity practice, and does not differ as to actions arising out of wrongful acts from the method by which the court, through process of contempt or other appropriate action, compels obedience to its decrees in all matters within its cognizance. In replevin provision is made by section 1731 for form of execution for the delivery of chattels. In common-law actions for tort, the procedure on enforcement of judgments is peculiar to that class of actions in so far as it authorizes the issuing of an execution against the person. An execution against the body can only be issued in actions sounding in tort, or in those cases where an order of arrest has previously been obtained. This class of cases is defined by section 549 of the Code as being one where the right to arrest depends upon the nature of the action, except in certain unimportant particulars provided for by section 550. The element of tort in some form Art. 7. Enforcement of Remedies in Actions for Torts. must enter into the action in order to authorize an order of arrest which may be followed by an execution against the body. The subjects of attachment, arrest, and execution against the person will alone be considered in this connection. SUBDIVISION 2. Attachment. Upon plaintiff showing the existence of certain conditions which are set out in section 636 of the Code, such as that the defendant is a foreign corporation, nonresident, etc., a warrant of attachment may be granted in the three classes of cases under the provisions of section 635. The first class mentioned, "Breach of contract, express or implied, other than a contract to marry," we may exclude from consideration. Two classes of cases remain, namely, Wrongful conversion of personal property" and "Injury to person or property in consequence of negligence, fraud, or other wrongful act." Conversion is defined in Pease v. Smith, 61 N. Y. 477, to be an unauthorized act, which deprives another of his property permanently, or for an indefinite time. It is enough to constitute conversion that the wrongful owner has been deprived of his property by some unauthorized act of another assuming dominion. or control over it. In Laverty v. Snethen, 68 N. Y. 522, at 524, Church, Ch. J., cites the following definition by Savage, J., in Spencer v. Blackman, 9 Wend. 167, "A conversion seems to consist of any tortious act by which the defendant deprives the plaintiff of his goods." Judge Church also cites from Bouv. Law Dict., title Conversion, the statement that every unauthorized taking of personal property, and intermeddling with it beyond the extent of the authority conferred, in case a limited authority has been given, with intent so to apply and dispose of it, as to alter its condition, or interfere with the owner's dominion, is a conversion. are The terms "personal injury" and "injury to property defined by section 3343 of the Code, subdivisions 9 and 10. Personal injury as so defined includes libel, slander, criminal conversion, seduction, and malicious prosecution. Also assault and battery, false imprisonment, or other action, injury to the person either of the plaintiff or of another. An injury to property is defined as "An actionable act whereby the estate of another is |