Chambers v. . Lewis
New York Court of Appeals
Appeal from a judgment of the Hew York Common Pleas. The action was brought against George Lewis, since deceased, to recover the value of certain barrels of soapstone and redstone, and a quantity of vulcanized gutta percha, alleged to have been the property of the plaintiff, and to have been converted by the defendant. Lewis, the- defend^ ant, having died, the action was continued against George Lewis, jun. and Augustus Cleveland, his executors.
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Appeal from a judgment of the Hew York Common Pleas. The action was brought against George Lewis, since deceased, to recover the value of certain barrels of soapstone and redstone, and a quantity of vulcanized gutta percha, alleged to have been the property of the plaintiff, and to have been converted by the defendant. Lewis, the- defend^ ant, having died, the action was continued against George Lewis, jun. and Augustus Cleveland, his executors. The answer denied that the plaintiff owned the articles in question, or that the then defendant had converted them ; and averred that certain…
1DissentBalcom, J.
The counter-claim set up in the answer was not a cause of action arising out of the transaction set forth in the complaint as the foundation of the claim, or connected with the subject of the action. Hence the demurrer to the same was properly sustained. (Code, § 150.) It was also properly sustained, for the reason that the counterclaim did not belong to the original defendant in the action at the time the same was commenced. (Rice v. O’Connor, 10 Abbott’s Pr. Rep. 362; Gage v. Angell, 8 How. Pr. Rep. 335; Van Valen v. Lapham, 13 id. 240; Pattison v. Richards, 22 Barb. 143.)
The judge properly…
2Cases cited4 opinions
- Gardner v. . McEwenNew York Court of Appeals · 1859
- Pattison v. RichardsNew York Supreme Court · 1856
- Fonda & Hoag v. GrossNew York Supreme Court · 1836
- Gage v. AngellNew York Supreme Court · 1853