BROWN a. BUCKINGHAM

BROWN a. BUCKINGHAM. Supreme Court, First District; Special Term, December, 1860. Pleading.—Counter-claim. In an action to recover possession of personal property delivered to defendant under a contract, defendant may set up as a counter-claim, a lien arising in his favor by virtue of the same contract. There is np reason why, in an action for the possession of personal property, all the claims of either party against the other, arising out of the transaction set forth in the complaint, may not be determined, as well as in an action technically on contract.* But it is not enough to aver that the alleged counter-claim arose out of the transaction set forth in the complaint. The facts which show this to be so must be averred. So held, on demurrer. Demurrer to complaint The plaintiffs stated in their complaint, that they were the owners, and entitled to the immediate possession, of three hundred and twenty-five pounds of silk, of the value of one thousand dollars, which was delivered to the defendant for the special purpose of being manufactured into sewing or fringe silk, and which had been so manufactured; and which silk the defendant illegally detained, after demand thereof; and they demanded judgment for the possession of the silk, or for one thousand dollars, the value thereof, in case it cannot be delivered, and for damages and costs of the action. The defendant, by answer, denied the plaintiffs’ alleged right to the possession of the silk, and claimed to have a lien thereon for the sum of five hundred and sixty-eight dollars and fifty-one cents; and also, by way of counter-claim, alleged that in February, 1860, he sold and delivered to the plaintiffs certain silk, for which there remained due to him the sum of four hundred dollars; and averred that such sale and delivery arose out of the contract and transaction set forth in the complaint, as the foundation of the plaintiffs’ claim, and was connected with the subject of this action. The plaintiffs demurred to the matter stated in the answer by way of counter-claim, as not containing facts sufficient to constitute a counter-claim. Bliss & Barlow, for plaintiffs. H. & C. S. Andrews, for defendant. To the contrary is Gottler a. Babcock (7 Ante, 392, note), but compare Lignot a. Redding (4 E. D. Smith, 285); Piser a. Stearns (1 Hill., 86); Murden a. Priment (Ib., 75); Merrick a. Gordon (20 N. Y. (6 Smith), 93) ; Edgerton a. Page (10 Ante, 119). [MAJORITY — Bonney, J.] Bonney, J. The first point made by the plaintiffs, on their demurrer, is that a counter-claim cannot be pleaded in an action for the possession of personal property. The Code, in general terms, and without limitation as to the nature of the action, provides (§§ 149, 150) that the answer may contain a statement of any new matter constituting a counter-claim, which is a cause of action, arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiffs’ claim, or connected with the subject of the action. This language is sufficiently comprehensive to include the present case, and permits the pleading of a counterclaim in this action; and although the action of replevin, or for the possession of personal property, as it is now named, is considered as founded upon tort, I can see no good reason for holding that all claims of either of the parties against the other, arising out of the transaction set forth in the complaint, and made the foundation of the plaintiffs’ claim therein, cannot be adjusted and determined in one suit of this form of action, as well as in an action properly and technically on contract. And such I understand to be the effect of the decisions of this subject. But the plaintiffs insist that this answer does not state facts which show that the alleged counter-claim arises out of the transaction set forth in the complaint; and this point, in my opinion, is well taken. The answer does not state that the silk, sold by defendant to plaintiffs, was the same silk of which plaintiffs now seek to recover the possession; or that it was sold or delivered under any contract which included or applied to the silk demanded by plaintiffs ; nor set forth any facts connecting in any way the transaction stated in the complaint, with the supposed cause of action stated in the answer. The averment is, that the sale and delivery of silk by defendant to plaintiffs, alleged in this answer, arose out of the contract and transaction set forth in the complaint. This may be so, but no physical fact, capable of being established by evidence, is stated which shows it, and the averment is of a conclusion of law. (Van Shaick a. Winne, 16 Barb., 89; Jones a. Phoenix Bank, 8 N. Y. (4 Seld.), 235.) For this reason judgment must be rendered for plaintiff on the demurrer, with leave to defendant to amend his answer in twenty days on payment of the costs to the demurrer.