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App. Div.]

First Department, March, 1910. plaint and the other in the defendant's 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 defendant or plaintiff without a finding that wholly defeats the alleged cause of action of the other. It does not seem to us in accordance with the spirit of modern procedure to give the sections of the Code quoted such a technical construction that it might require the trial court to twice sit and hear exactly the same facts in actions between the same parties before the proper judgment can be rendered between them.) We have not overlooked the fact that there are decisions in this and other States seemingly in conflict with the views herein expressed.” The cases of Sheehan v. Pierce (supra) and Deagan v. Weeks (supra) are reconcilable and consistent upon the theory that in the former the court meant to decide that where two causes of action for slander coexisted, one in favor of the plaintiff and the other in favor of the defendant, the one could not be counterclaimed against the other even though the two slanderous utterances were in the same conversation, and that the effect of the decision in the latter is merely that where the transaction, namely, the encounter or affray upon which the plaintiff bases his cause of of action for assault, instead of constituting an assault upon the plaintiff in fact constituted an assault by him upon the defendant so that there is but a single cause of action in favor of one but not in favor of both of the parties, either may interpose a counterclairn based upon his view of the facts in an action brought by the other, which is analogous to the case of the collision between two vehicles. The case of Deagan v. Weeks (supra), however, which carries the doctrine further than any other authority, does not go far enough to sustain the counterclaim in the case at bar. In the case at bar the defendant denies that he caused the arrest of the plaintiff and avers that the arrest was made by a police officer who was an eye-witness to the transaction. If the police officer made the arrest on liis own responsibility then the defendant is in no manner connected therewith, and so far as he is concerned it is the same as if no arrest had been made. The case, therefore, is virtually the same as if the defendant touk the position that there had been no arrest at all, and on that theory, instead of there

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 tlie same time interpose a counterclaim for trespass, which was another transaction, npon the theory that it arose out of, or was connected witlı, 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 al 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 inter* posed. The trespass, liowever, 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 liardly be contended that the counterclaim wonld 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 singlo 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 malicions 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. deceit alleged to have been practiced some nine months before. A 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.-Vo... 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 [IIenry 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.

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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 indi

vidual 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 part

ners 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 a sum due a firm of building contractors to a per

son who had previously guaranteed the payment of an accommodation note made by another person for the benefit of the firm, which assigoment 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-con

tractors who filed liens on the sum assigned. This is true although the guarantor voluntarily paid the note when it sub.

sequently 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.

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