Hagin v. Cayuga Lake Cement Co.

Chase, J.: The respondent calls our attention to the following cases: Hall v. Werney (18 App. Div. 565); Baum's Castorine Co. v. Thomas (92 Hun, 1); Hinkley v. Troy & Albia R. R. Co. (12 id. 281); Denniston v. Trimmer (27 id. 393); Harvey v. Van Dyke (66 How. Pr. 396); Houghton v. Kenyon (38 id. 107); Moore v. Trimmer (6 N. Y. Supp. 430), and contends that they are authority for the order made herein. The foundation for such contention rests upon the assertion that the defendant’s counterclaim is not one that can be considered in this action. Section 2945 of the Code of Civil Procedure provides: “ Sections 501 and 502 of this act apply to a counterclaim in an action brought in a justice’s court.” The counterclaim in this action can be “ a cause of action arising out of the contract or transaction set forth in the complaint,” or any “ cause of action on contract existing at the commencement of the action.” (Code Civ. Proc. § 501.) The plaintiff insists that the counterclaim is a cause of action in tort, and the defendant insists that the counterclaim is a cause of action on contract, and that it also refers to the same contract or transaction set forth in the complaint. Where the sole relation between two parties is contractual in its nature, a breach of the contract does not usually create a liability as for negligence. In such a case the liability of one of the parties to the other because of necdierence is based either on the breach of some duty which is implied as the result of entering into the contractual relation or from the improper manner of doing some act which the contract provided for; but the mere violation of a contract; where there is no general duty, is not the subject of an action of tort. (Schick v. Fleischhauer, 26 App. Div. 210; Boden v. Scholtz, 101 id. 1.) [272] The allegations of the counterclaim do not relate to the breach of any general duty of the plaintiff to the defendant. The plaintiff’s duty and obligation to remain awake and care for defendant’s boilers and observe the condition of the fires and the amount of steam pressure existed by reason of his having entered into a contract therefor. Apart from the contract plaintiff is hot liable for sleeping and mere failure to perform a service for' the defendant. The Counterclaim alleges the contract, a breach thereof, and damages resulting therefrom and in whatever way it is viewed the basis of the action is the contract and there is not an allegation therein asserting a breach of any public or general duty. In Ward v. St. Vincent's Hospital (39 App. Div. 624), where it was claimed by the plaintiff that an employee of the defendant negligently put a rubber bag filled with very hot water next to her person when she was a patient at said hospital and .under the influence of ether, and also negligently allowed the same to remain so next to her person until she was seriously injured thereby, the court held that the action was brought to recover for a claimed breach of an express contract whereby the defendant promised to furnish for the use of the plaintiff a skilled, competent and trained nurse, and that the action was on contract and not an action for a tort. In the case now under consideration even the apparent breach of duty apart from the contractual relation which led the court on the first trial of Ward v. St. Vincent's Hospital (23 Misc. Rep. 91) to hold that the action was one sounding in tort, does not exist. The counterclaim is one for breach of contract, and the learned County Court was in error in holding that the counterclaim was for a tort. The order, should be reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements.