Pattison v. Richards

By the Court, Paige, J. I see no error in the charge of the judge who tried the cause. The agreement proved on the trial and claimed by the defendant to be an equitable defense to the plaintiff’s action, was made in 1842. The acts of the defendant, viz. the digging of the ditches on' his land, by means of which the water of the stream was diverted from the plaintiff’s land, for which this action was brought, were done in 1846. The agreement proved has therefore no connection with, or relation to, the digging of the ditches, which caused the injury to the plaintiff. The variance between the agreement as proved and the one set up in the answer is essential and material. The answer having been put in under the code of 1849, it must be construed according to the rules of pleading established by that code. But if the code of 1852 applied, the agreement proved on the trial could not be set up as a counter claim, as it had no connection with or relation to the acts of the defendant of which the plaintiff complains. It is not embraced by the definition of a counter claim in the code of 1852. It is not a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. (Code, sec. 150, sub. 1. 10 How. Pr. Rep. 377, 381, 2.) The agreement could not have been set up by way of recoupment of damages. A defendant, previous to the code of 1852, could only claim a recoupment where his demand against the plaintiff arose out of the same contract or transaction which was the subject of the plaintiff’s action. (3 Hill, 174.) Nor can the defendant claim damages for breach of the agreement, as a set-off, either under the revised statutes or the code as it stood previous to its amendment in 1852 ; as the plaintiff’s action is for a tort. In such an action, previous [146] to -the code of 1852, set-offs were not allowed; nor are set-offs in actions for torts now allowed as counter claims, under the second sub. of sec. 150- of the code of 1852. Counter claims, under the code of 1852, embrace both set-offs and recoupments as they were understood prior to that code. The answer in this case does not claim the benefit of the agreement either as a counter claim, as a set-off, or by way of recoupment. It sets it up only as an equitable defense to the plaintiff’s action. It cannot be received as such, because it has no connection whatever with the cause or subject of the plaintiff’s action. It having no connection with the tortious act of the defendant, of which the plaintiff complains, no principle of equity will justify the court in receiving it, either as a full or a partial defense to the plaintiff’s cause of action. If the agreement is a valid agreement under the statute of frauds, and the plaintiff has violated his part of it, and the defendant has a remedy against him for such violation, he must seek that remedy in a separate suit. It cannot be accorded to him in this action. The diversion of the water of the stream from the plaintiff’s land, by the defendant, in order to drain his own land, was not a lawful or reasonable use of his right to the usufruct of the water as it passed over his land. (10 Barb. 518. 2 John. Ch. 162. 10 Wend. 260. 17 Barb. 659. 17 John. 306.) [Clinton General Term, May 6, 1856. The judgment must be affirmed. C. L. Allen, Paige, James, and Rosekrans, Justices.]