Savage v. City of Buffalo

Williams, J.:

The action was brought to recover damages for the conversion of a quantity of stone flagging.

*1371. The defendant claims that the plaintiffs should not be heard to. allege that the answer is defective, because the complaint itself does, not allege facts sufficient to constitute a cause of action. This attack • upon the complaint may be made under the well-settled rule that a bad answer is good enough for a bad complaint; and if the complaint is bad, the answer will not be disturbed. (Baxter v. McDonnell, 154 N. Y. 432, 436, and cases there referred to.)

We must, therefore, consider the question whether the complaint alleges facts sufficient to constitute a cause of action for conversion.

The specific objection made is that the complaint fails to allege ownership and right to the possession of the property in the plaintiffs. The complaint, among other things, alleges that the parties entered into a contract, in writing, that the plaintiffs should construct a school building for the defendant, according to plans and specifications furnished by the defendant; that, according to the plans and specifications, the old building and fence upon the lot should be removed by the plaintiffs at their own expense, and they -should have the material therein, and the privilege to use such of the old brick as the architects deemed suitable; and all other such old material on the lot the plaintiffs should take therefrom, leaving so much earth as might, in the judgment of the superintendent of buildings, be needed for grading around the building; but all other earth and refuse of every kind the plaintiffs should take entirely from the lot, and that the specifications formed a part of the contract ; that by said plans, specifications and contract, and the well-known usage of trade, all the materials on said lot, other than earth needed for such grading, and not reserved by the owner, belonged to the plaintiffs; that of such other material was about 4,350 square feet of stone flagging of the value of fifteen cents per square foot, which said stone was not reserved by the defendant and which thereby became the property of the plaintiffs as owners thereof; and the plaintiffs then became and ever since have been the owners and entitled to the immediate possession thereof. A mere reading of these allegations shows that ownership and right to possession in the plaintiffs was fully and sufficiently alleged. No argument on the subject is necessary. (Prindle v. Caruthers, 15 N. Y. 425 ; Sage v. Culver, 147 id. 241; Spies v. Michelsen, 2 App. Div. 226.)

*1382. The counterclaim constituting the defendant’s second defense is well pleaded, for although the complaint alleges a cause of action in tort, and the counterclaim is upon contract, yet the counterclaim arose out of the same transaction or contract as did the alleged tort, and, therefore, it was properly alleged as a defense under the 1st subdivision of section 501 of the Code of Civil Procedure. (Carpenter v. Manhattan Life Ins. Co., 93 N, Y. 552.)

The demurrer to this second defense was, therefore, properly overruled.

3. The demurrer to the third defense was properly taken for the reason stated in the opinion of McLennan, J., in Savage v. The City of Buffalo (49 App. Div. 577), recently decided by this court.

It follows, therefore, that the interlocutory judgment, so far as It overruled the demurrer to the second defense, should be affirmed, and so far as it overruled the demurrer to the third defense, should be reversed, and the demurrer sustained, with the usual leave to amend, without costs of this appeal to either party.

Adams, P. J., and Latjghlin, J., concurred; McLennan, J., dissented in an opinion; Seeing. J., not sitting.