[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 474 A counter-claim must tend in some way to defeat or diminish the plaintiff's recovery, and must be either (1) a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, or (2) in an action on contract, any other cause of action on contract existing at the commencement of the action. (Code Civ. Pro. § 501.) The counter-claim in question is a cause of action tending to diminish the plaintiff's recovery, and to that extent, conforms to the requirements of the statute. As this is not an action on contract, before we can determine that the counter-claim should stand as a pleading, we must ascertain whether it arose out of the transaction set forth in the complaint, and if it did not, whether it is connected with the subject of the action within the meaning of the Code. What is the transaction set forth in the complaint as the foundation of the plaintiff's claim? It is the commencement of an action against him, with malice and without probable cause, and his arrest therein under process that was afterwards set aside as illegal. What is the counter-claim? A cause of action for damages caused by deceit in the purchase of goods on credit. The deceit was practiced and the goods obtained in January, 1887, while the action was commenced and the arrest made in the following September.
While the deceit was the inducement to the action and arrest, it arose out of neither, because it preceded both and existed independently of both. Although it was the alleged *Page 476 ground of the action and arrest, it was not the cause of either, but was rather the pretext or ostensible reason. A groundless and malicious prosecution is 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 counter-claim did not arise out of the same transaction, and that the plaintiff's claim rests upon an entirely different foundation from the defendants' counter-claim. Each was a separate and distinct wrong and a transaction by itself.
The question remains whether the counter-claim was connected with the subject of the action, or in other words, with the facts constituting the plaintiff's cause of action. (Chamboret v.Cagney, 2 Sweeney, 378; Lehmair v. Griswold, 8 J. S. 100.)
The complaint and answer set forth independent torts, differing radically in nature and committed upon occasions widely separated. Whether the subject of the action is malicious prosecution, or false imprisonment, it is distinct and independent of the claim of the defendants. There is no necessary or legal connection between the two. It is not like an action for converting wood and a counter-claim for waste in cutting the same wood (Carpenter v. Manhattan Life Ins. Co., 93 N.Y. 552), or where certain goods are the subject of the action and a claim is made for the value of the same goods (Thompson v. Kessel,30 N.Y. 383), or where a mutual claim is made to a trade-mark (Glen Hall Mfg. Co. v. Hall, 61 N.Y. 226).
On the contrary the effort is here made to set up one tort committed in January against another committed in September, the one being for an injury to property and the other for an injury to the person. The circumstance that the deceit which constituted the former was the pretext or excuse for perpetrating the latter, establishes no such connection as to satisfy the statute, any more than if A. slanders B. on the *Page 477 Fourth of July and B. thrashes him for it at Christmas. (Schnaderbeck v. Worth, 8 Abb. Pr. 37; Fellerman v.Dolan, 7 id. 395; Askins v. Hearns, 3 id. 184, 187.)
The judgment should be affirmed, with costs, with leave to the defendants to amend their answer within twenty days, upon the payment of costs.
All concur.
Judgment affirmed.