Defendant has set up a counterclaim for work, labor and services, in the rendition of which he used a list of stockholders which plaintiffs seek to replevy in this action. The counterclaim cannot be interposed under the Civil Practice Act (§ 266, subd. 2) because the complaint is not upon contract; nor can it be interposed under subdivision 1, because the counterclaim does not arise out of the same transaction or contract which constitutes the foundation of the plaintiffs’ claim. That the stockholders’ list was used by the defendant in connection with his rendition of services in no way makes that the same transaction as the wrongful conversion set forth in the complaint.
*297The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to strike out the counterclaim granted, with ten dollars costs.
Present — Dowling, P. J., Merrell, Martin, O’Malley and Proskauer, JJ. Martin, J., dissents.