Lehmair v. Griswold

The summons is for relief, and the complaint is in tort, alleging a conversion of two sums of money. For the purposes of this appeal, the character of the action is determined by the complaint.

The counter-claims demurred to, are, therefore, not available in this action under § 150 of the Code.

They do not arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, nor are they connected with the subject of the action. The words “the subject of the action” mean “the facts constituting plaintiff’s cause of action” (Chamberet v. Cagney, 2 Sweeny, 385).

The order appealed from should be affirmed, with costs.

Speir, J., concurred.