Note on the Locality of a Cause of Action. risdiction of the Supreme Court, but simply to determine the 13 place of trial of actions, of which it had jurisdiction. In the last two cases above cited the actions were commenced after that section took effect, and it cannot be supposed that it was overlooked in the decisions of those cases. All parts of the section can have effect without extending the jurisdiction of the court to actions like this counter-claim, which were always regarded as triable only where the cause of action arose. 14 But the claim is made that even if the defendant could not have sued the plaintiff upon this cause of action within this State, she might yet set it up as a counter claim. By section 501 of the Code a counter-claim is defined to be a cause of action against the plaintiff in favor of the defendant. It must then be a cause of action upon which the defendant could sue the plaintiff, and which he holds and possesses against the plaintiff at the place where the action is commenced. A defendant cannot avail himself of a counter-claim which the court before which the action is pending has no jurisdiction to try and determine. A counter-claim must be a complete cause of action existing in favor of the defendant where he asserts it; otherwise he has no 15 counter-claim there. It follows from these views that the judgment should be reversed, and judgment should be given for the plaintiff upon the demurrer, with costs. All the judges concurred, except ANDREWS, Ch. J., and RAPALLO, J., not voting. Judgment reversed. NOTE ON THE QUESTION WHAT IS TO BE DEEMED ACTION AROSE. The question what is to be deemed the place where the cause of action 1 arose, may be presented for either of several purposes: It may be presented as affecting the jurisdiction of a local court, as in case of the superior city courts in actions other than those affecting real property (Code Civ. Pro., $ 263, subd. 2 and subd. 7), it may be presented as affecting the jurisdiction of the Supreme Court as well as any other court, of an action brought by a foreign corporation or a non-resident against a foreign Note on the Locality of a Cause of Action. 2 corporation (§ 1780), and it may be presented as affecting the question of the proper place of trial in an action in the Supreme Court (§ 983), and, where several causes of action require different places of trial, the misjoinder may be objected to on the pleadings (§ 484). Whenever the situation of persons or property has reached such a condition as to justify invoking the judicial power by an action, a cause of action is said to have arisen. If this justiciable condition is produced by a single act-as for instance an assault-the time and the place are inherent in the act itself, and proving the latter in detail proves both former. It makes no difference in such case that subsequent events at the same or at another place enhance or mitigate the damages. The time and place of accrual are fixed at the outset, subject only to the principle that a con3 tinuing wrong may be deemed in some cases a continually accruing succession of causes of action. (See note on the time when a cause of action accrues, in 26 Abb. N. C., 3.) If the justiciable condition is produced by a succession of events, each necessary to the resulting condition, as in the case of a contract made by defendant and subsequently broken by him, it is clear that the time of accrual is fixed by the latest of these necessary -events. It is well to notice, in this connection, a consideration of justice which introduces some anomaly. In those classes of cases where a plaintiff must perfect his cause of action by some affirmative step on his own part-such as a demand required by the terms of his contract, or a notice or presentation of claim against a municipality-the act is a part of his cause of 4 action within the rules of pleading and proof; and an action commenced before he has done the act is premature; but the act is not necessarily a part of his cause of action for the purposes of the statute of limitations because he otherwise might intentionally delay it till after defendant's evidence as to the principal transactions had been lost. 5 See the cases on the question, collated particularly with reference to actions on contract, in 28 Abb. N. C., 435: 1. Some refer to the place where the contract was made. 2. Others to the place where the consideration was furnished. 3. Others still-and this is now the prevailing test-to the place where the breach occurred. There are divergent authorities as to where the breach should be deemed to occur, some holding: (a.) That the breach arises at the place where defendant is when he refuses. (b.) The place of refusal, or where plaintiff is notified of defendant's refusal. (c.) Where defendant should have performed, but did not. Polley v. Wilkisson, 5 Civ. Pro. Rep., 135. POLLEY v. WILKISSON. City Court of Brooklyn, General Term, 1884. [Reported in 5 Civ. Pro. Rep., 135.] Y 1. A cause of action for trespass upon land, and a cause of action for conversion of personal property may be united, under Code Civ. Pro., 484, subd. 9, when they both arise out of the same transaction. 2. A fair interpretation of the term "transaction as used in the Code, does not confine it to a single one of a series of connected acts transpiring at the same time; it means something broad enough to embrace causes of action belonging to the different subdivisions of § 484. 3. The word "transaction," as used in § 484, is comprehensive enough to include the breaking into a market stand, tearing down partition, fixtures, etc., locking it up and carrying away the goods and fixtures, when done at the same time, these acts are all parts of the same transaction. 4. Neither trespass upon real property, nor trover, is a local action. Demurrer to complaint on the ground that causes of action 1 have been improperly united. The facts essential to the decision sufficiently appear in the opinion. REYNOLDS, J. Conceding that the 4th paragraph of the complaint sets out a cause of action for trespass upon land, and the 5th paragraph a cause of action for conversion of personal property, I think the two may be united under subd. 9 of section 484 of the present Code, on the ground that they both arise out of the same transaction. Taking the two paragraphs together, they set out in substance that defendants violently entered upon the premises lawfully occupied by plaintiff, locked him out, and deprived him of possession, and that in so doing they broke down walls and partitions, destroyed his signs and fixtures in and upon the premises, and at the same time took and carried away the fixtures and other personal property of plaintiff and converted the same to their own use. All this, though stated in separate paragraphs was one continuous transaction. A fair interpretation of that term, as used in the Code, does not confine it to a single one of a series of connected acts transpiring at the same time, if so, each blow struck, each wall or partition 2 4 Polley v. Wilkisson, 5 Civ. Pro. Rep., 135. 3 broken down, each article carried away, would be a transaction by itself. It means something broad enough to embrace more than one cause of action, broad enough even to embrace causes of action belonging to different subdivisions of the section, for the only construction I can put upon this 9th subdivision which seems to me at all sensible, is that claims or causes of action which are not all included in any one of the foregoing subdivisions, that is, which belong to different ones, may, notwithstanding, be united, provided they arise out of the same transaction or transactions connected with the same subject of action. The words "not included within one of the foregoing subdivisions of this section," mean not included within one only, but belonging to more than one claim-belonging to one only, are already provided for; those belonging to more than one, but arising out of the same transaction, etc., are provided for by subd. 9. The word "transaction" used in such a connection as well as in common parlance is comprehensive enough to include the breaking into a market stand, tearing down partitions, fixtures, etc., locking it up and carrying away the goods and 5 fixtures; when done at the same time, these acts are all parts of the same transaction. 6 Counsel for appellant seems to suppose, however, that the concluding part of the section requires that causes of action, to be united, must in all cases belong to one, and one only, of the first eight subdivisions. The language is that "it must appear upon the face of the complaint that all the causes of action so united, belong to one of the foregoing subdivisions of this section," etc. The trouble with this is that subd. 9 is one of the "foregoing subdivisions" as well as the eight others, and to give effect to the whole, it is necessary to hold that any and all causes of action "arising out of the same transaction" are a class by themselves, which may be united, provided they meet the other conditions contained in the closing paragraph of this section. It is said, however, that these two causes of action require different places of trial. Not at all-neither of them are local; sections 982 to 984 of the Code regulate this subject and neither trover nor trespass upon real estate is included under either of these sections. The interlocutory judgment should be Nichols v. Drew, 94 N. Y., 22. affirmed without costs, with leave to defendant to answer upon 7 the terms given in the Special Term order. No costs of this appeal, as the question seems to be novel. NICHOLS v. DREW. New York Court of Appeals, 1883. [Reported in 94 N. Y., 22; aff'g 25 Hun, 315.] 1. If a complaint contains two causes of action, one of which affects all of the defendants, and the other of which does not, a defendant who is not affected by both causes of action may demur; but the proper ground to assign is that there is a misjoinder of causes of action, not that there is a misjoinder of parties. 2 The rule that a defendant against whom a good cause of action is alleged, may not demur because too many parties are joined, does not preclude demurring to a misjoinder of causes of action where parties who are necessary as defendants as to one are not proper defendants as to the other. The elements of the first cause of action were: That the 1 defendants Drew, Young and McLane became jointly indebted to plaintiff in a specified sum for the board of their workmen. That the defendants nominally failed, and Drew conspired with Churchill to cheat plaintiff out of his claim. To that end Churchill offered to buy plaintiff's claim for twenty-five cents on the dollar and made false and fraudulent representations as to Drew's pecuniary condition and his own motive, which he knew to be false. That plaintiff in reliance thereon was induced to assign to 2 Churchill his claim for that price. That in fact Drew was solvent, and the money Churchill paid was furnished by Drew and the assignment turned over to Drew. Plaintiff's damages were laid at the amount of the claim less the sum paid for the assignment. The elements of the second cause of action were (after repeating by reference all the allegations of the first): |