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First Department, March, 1910.

[Vol. 137. being a transaction such as is alleged in the complaint resulting in the arrest of the plaintiff, the things he has attempted to allege being without foundation, it would appear that there was no transaction at all in the nature of an arrest or malicious prosecution. The defendant cannot deny the existence of the transaction upon which the plaintiff founds his cause of action for a tort, or that there was any subject of the plaintiff's action, and at the same time interpose a counterclaim for trespass, which was another transaction, upon the theory that it arose out of, or was connected with, an arrest or malicious prosecution, which never took place. Of course, where there has been a transaction of the nature of that set forth in the complaint, and that transaction gives rise to a cause of action in favor of one or the other of the parties, the same rule might obtain in some instances where it gives rise to a cause of action in favor of both, and they differ with respect to the attendant and surrounding facts and circumstances and the result or effect of the transaction, then a counterclaim may properly be interposed. The trespass, however, was a separate and independent transaction, in no manner connected with the arrest, excepting that the defendant points to the trespass as the reason the police officer made the arrest. That, however, was not the necessary consequence of the trespass, and defendant, on his theory of the case, was not moved by the trespass to do anything. It could hardly be contended that the counterclaim would be proper if the arrest had not been made while the plaintiff was in the act of committing the trespass. Therefore, no important principle is involved in the question presented for decision, for, since manifestly the counterclaim could not be interposed if it appeared that the defendant ordered the arrest of the plaintiff or swore out a warrant for his arrest a year, a month or even a day after the unlawful trespass, no great convenience would be subserved by holding that the counterclaim will lie in the single instance where it appears that the arrest was made and the malicious prosecution was instituted concurrently with the trespass. The learned Special Term, overruling the demurrer, distinguished the case of Rothschild v. Whitman (supra) on the facts. That decision was clearly distinguishable on the facts. It was an action for false arrest and malicious prosecution, based upon the arrest of the plaintiff under an order of arrest in a civil action for fraud and

App. Div.]

First Department, March, 1910.

A

deceit alleged to have been practiced some nine months before. counterclaim for the fraud and deceit was interposed. The court, in holding that the counterclaim was not proper, dwelt at length upon the interval of time intervening between the fraud and deceit and the arrest, and apparently placed great emphasis on the fact that the one tort was committed in January and the other in September, from which it might be inferred that the decision would have been otherwise had the two torts been committed simultaneously. We are of opinion, however, that it does not follow that the court would have sustained the counterclaim had the torts been committed concurrently. On the contrary, it is stated in the opinion that although the deceit was the inducement to the action and arrest it preceded both, and arose out of neither, but existed independently of them, and was not the cause of either, "but was rather the pretext or ostensible reason;" that the malicious prosecution was "caused by the act of commencing the action, not by the reasons given for commencing it. An illegal arrest, such as that in question, is caused by the issuing and service of the order of arrest, not by the facts recited therein. There is no relation of cause and effect between an illegal act, or the determination to do one, and the excuse alleged for doing it, We think that the claim and counterclaim did not arise out of the same transaction, and that the plaintiff's claim rests upon an entirely different foundation from the defendants' counterclaim. Each was a separate and distinct wrong and a transaction by itself." In the light of these authorities it seems quite clear that the trespass for which the defendant interposed the counterclaim did not arise out of the transaction set forth in the complaint as the foundation of the plaintiff's claims and that it is not connected with the subject of the action set forth therein. It follows, therefore, that the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, but with leave to the defendant to answer over by omitting the counterclaim, upon payment of the costs of the appeal and of the demurrer.

INGRAHAM, P. J., CLARKE, SCOTT and MILLER, JJ., concurred.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs. APP. DIV.-VOL. CXXXVII.

16

First Department, March, 1910.

[Vol. 137.

ELLIS PETTIS, Appellant, v. ADOLPH SCHWARTZ, Respondent.

First Department, March 11, 1910.

See head note in Adams v. Schwartz (ante, p. 230).

APPEAL by the plaintiff, Ellis Pettis, from an interlocutory judg ment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff's demurrer to the counterclaim contained in the answer.

Frank Walling [Harvey J. Cohen with him on the brief], for the appellant.

A. Joseph Geist [Henry Swartz with him on the brief], for the respondent.

PER CURIAM:

The questions presented by this appeal are the same as those presented in the case of Adams v. Schwartz (137 App. Div. 230), argued and decided herewith. The plaintiff in this action was also a billposter, and claims to have been arrested and maliciously prosecuted at the same time and place and under like circumstances, and the defendant likewise counterclaimed against him for trespass.

On the authority of the opinion in the other action the interlocutory judgment should be reversed, with costs, and demurrer sustained, with costs, but with leave to defendant to serve an amended answer, omitting the counterclaim, on payment of the costs of the appeal and of the demurrer.

Present INGRAHAM, P. J., LAUGHLIN, CLARKE, SCOTT and MILLER, JJ.

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.

App. Div.]

First Department, March, 1910.

CONCORD CONSTRUCTION COMPANY, Respondent, v. GUTHRIE B. PLANTE, Trustee in Bankruptcy for HAMILTON M. WEED and FRANK BARRETT, Individually and as Members of the Firm of H. M. WEED & COMPANY, and Others, Appellants, Impleaded with THE BOARD OF EDUCATION OF THE CITY OF NEW YORK and Others, Defendants, and ALBERENE STONE COMPANY and Others, Respondents.

First Department, March 11, 1910.

Mechanic's lien-assignment of sum due firm of contractors for individual debt-consideration-mechanic's lien superior to claim of trustee in bankruptcy — assignment to guarantor - consideration — assignment in fraud of lienors.

An assignment of a sum due a firm of building contractors made by one of the partners in the firm name in satisfaction of his individual obligations incurred prior to the formation of the partnership is without consideration and void as against a mechanic's lien filed by a sub-contractor subsequent to the assignment. The lien of such contractor on the sum assigned is superior to the claim of a trustee appointed on the bankruptcy of the partners, whether or no such assignment be void or voidable under the Bankruptcy Act.

An assignment of a portion of sum due a firm of building contractors to a person who had previously guaranteed the payment of an accommodation note made by another person for the benefit of the firm, which assignment was made after the guaranty, on which there was no right to indemnity, and before the maturity of the note, is without consideration, and is void against sub-contractors who filed liens on the sum assigned.

This is true although the guarantor voluntarily paid the note when it subsequently fell due, if the maker was able to pay to the knowledge of the guarantor.

Where such assignment was made and accepted with the intent to defraud the lienors, it is void as to them even though the voluntary payment of the note by the guarantor should be deemed to be a consideration.

MILLER, J., and INGRAHAM, P. J., dissented in part, with opinion.

APPEAL by the defendants, Guthrie B. Plante, as trustee, etc., and another, from portions, and by Willam H. Bolton and others, from the whole of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 24th day of May, 1909, upon the decision of the court rendered after a trial at the New York Special Term.

First Department, March, 1910.

[Vol. 137.

Jacob J. Lesser, for the appellant Plante as trustee.

Benjamin N. Cardozo, for the appellants Bolton and others.

II. Schieffelin Sayers, for the respondents Alberene Stone Company and others.

Walter H. Gilpatric, for the respondents Concord Construction Company and others.

A. S. Gilbert, for the respondent The John Pinches Company. Frank M. Avery, for the respondent General Fireproofing Company and others.

MCLAUGHLIN, J. :

Action by a sub-contractor to foreclose a mechanic's lien upon a fund due the general contractor from the city of New York. The general contractor was the firm of H. M. Weed & Co., which was a partnership composed of H. M. Weed and one Barrett. On the 2d of October, 1907, Weed executed, in the name of the firm, four assignments, the aggregate amount of which covered substantially the entire fund in question. The plaintiff filed its notice of lien on October third, and similar notices were filed by the other respondents on the same day, or shortly thereafter. The firm was subsequently adjudicated a bankrupt and the appellant Plante appointed trustee. The trial court found that the assignments were without consideration, fraudulent and void as against the lienors, and directed payment of the fund to the plaintiff and the other respondents, and the balance remaining, if any, to the trustee. Judgment was entered to this effect, from which the assignees and the trusteewho claims the exclusive right to attack the assignments-appeal

The evidence adduced at the trial fully established that the assignments, with the exception of that to the appellant Bolton, were given in satisfaction of the individual obligations of H. M. Weed, incurred prior to the time the partnership was formed. It did not appear at least evidence was not offered which would have justified a finding-that these obligations, or any of them, were ever assumed by the firm, and the trial court, therefore, was correct in finding that the assignments were without consideration and void as against the lienors. That being so, the lienors, in preference to the trustee, were entitled to payment from the fund.

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