Scognamillo v. Passarelli

Scott, J. (dissenting):

The action is for the possession of certain personal property, consisting of paintings, or, if a return cannot be had,, for damages for the detention.

The defendants Passarelli, by way of defense, allege that the paintings were delivered to them as security for a debt which has not been paid. The same facts are alleged also by way of a counterclaim, and said defendants for judgment upon said counterclaim ask for the foreclosure of their lien.

In my opinion the counterclaim is properly pleaded under section 501 of the Code of Civil Procedure. The subject of the action is the personal property sought to be replevied. (Carpenter v. Manhattan Life Ins. Co., 93 N. Y. 552; Cooper v. Kipp, 52 App. Div. 250.) In the former case it was said: “The counterclaim must have such a relation to and connection with the subject of the action, that it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the counterclaim should be settled in one action by one litigation; and that the claim of the one should be offset against or applied upon the claim of the other.” The present is, in my opinion, precisely such a case. It is clearly just that the conflicting claims of the plaintiff and the defendants to the possession and disposition of the pictures should be settled in one action. It would be a useless duplication of work to try out the defendants’ right to possession in one action and then try in another action, upon the same facts, the defendants’ right to enforce their lien.

The order appealed from should be affirmed, with costs.

Ingraham, P. J., concurred.

Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs, with leave to respondents to amend on payment of costs.