Marsh r. Pierce. The facts are stated in the opinion. William C. Anderson, for defendant-respondent and motion. Cornelius E. Stephens, for plaintiff-appellant, opposed. EARL, J.-Judgment of affirmance by the general term was entered in this action February 5, 1885, and the plaintiff did not serve notice of appeal therefrom to this court until the 1st day of June, 1886, nearly sixteen months thereafter. He has caused a return to be made to this court; has served notice of argument; and has placed the cause upon our new calendar. The defendant has made this motion to dismiss the appeal on the ground that it was not brought within the time prescribed by the Code, section 1325 of which requires an appeal to this court from a final judgment to be taken within one year after the judgment is entered and the judgment-roll filed. That is an absolute limitation, and the time begins to run from the time the final judgment is entered, and the roll filed; and no notice of the judgment or of its entry is necessary to set the time running. This is made clear by the subsequent provision in the same section as to appeals to this court from orders of the general term. It is provided that such appeals must be taken within sixty days after service "of a copy of the order appealed from, and a written notice of the entry thereof;" and a similar provision is contained in section 1351, as to appeals to the general term. It was, doubtless, supposed, in limiting the time for appeals to this court to one year, that the party desiring to appeal would have ample opportunity to obtain information of the entry of the judgment without any notice thereof from the other party. The couns for the appellant claims that this motion should be denied on account of the laches of the respondent. The return was filed in this court on July 22, 1886, Marsh v. Pierce. and on August 10, 1886, the appellant served three printed copies of the return on the respondent's attorney, and they were not returned. But the respondent's attorney immediately returned the notice of appeal served on him, with a statement indorsed thereon, that it was returned because the appeal was not brought within the time required by the Code. That was a distinct notice to the appellant's attorney, that his appeal was too late, and that the respondent did not mean to recognize the same, and the appellant could not thereafter take any further steps upon the appeal with any expectation that the respondent would waive the objection he had made. Having taken his stand and notified the appellant's attorney thereof, the respondent's attorney was not bound to continue to return all the papers which the appellant's attorney chose thereafter to serve upon him, and he did not waive the objection he had made to the appeal by retaining copies of the printed case, which no act of his had caused or induced the appellant to print. When the attorney subsequently noticed the cause for argument, the respondent's attorney immediately returned the notice with a statement that it was returned because the notice of appeal was not served in time. We are, therefore, of the opinion that the motion. should be granted and the appeal dismissed, with costs. All concurred. Barker v. Platt. BARKER v. PLATT. SUPREME COURT, FIRST DEPARTMENT, NEW YORK COUNTY, SPECIAL TERM, JUNE, 1888. $501. Counter-claim-when claim on contract cannot be pleaded as, in action for tort. To establish a counter-claim in an action for tort, it must have arisen out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or be connected with the subject of the action. People v. Dennison (84 N. Y. 280), followed. In an action brought to recover moneys collected by the defendant without authority for goods sold by him as plaintiff's agent, the defendant cannot set up a counter-claim for commissions for selling goods for the plaintiff, for the reason that the subject of the action is wholly distinct from the contract between the parties in regard to the sale of the goods, and from any claim of the defendant for moneys due him from plaintiff under that contract. In such a case the plaintiff, to succeed, must prove that the defendant received the money without authority; and it is immaterial whether the defendant sold the goods as the agent of the plaintiff, or whether the plaintiff sold them directly. (Decided June 19, 1888.) Trial of issue raised by demurrer to counter-claim. The plaintiff brought this action against the defendant to recover the sum of $2,500, moneys alleged to have been collected by the defendant without authority, from persons to whom he had, as the agent of the plaintiff, sold goods belonging to the plaintiff. The defendant, in his answer, admitted receiving the money, asserting that he Barker v. Platt. had authority to collect, and set forth a counter-claim for commissions alleged to be due him from plaintiff for selling goods. The plaintiff demurred to this counter-claim, on the ground that it was not of the character specified in section 501 of the Code of Civil Procedure. Charles B. Hubbell, for plaintiff and demurrer. Charles H. Griffin, for defendant, opposed. INGRAHAM, J.-The cause of action set up in the complaint is clearly an action in tort, and not on the contract between plaintiff and defendant. For the plaintiff to maintain his cause of action, he must prove that the moneys collected by the defendant, belonged to the plaintiff, and that the defendant had collected and received the money, without authority from the plaintiff. The cause of action arises out of the unlawful conversion by the defendant of the plaintiff's money, and it is entirely immaterial whether the defendant sold the lumber as the agent of the plaintiff, or whether the plaintiff sold it directly. If the defendant had authority to collect the money, the plaintiff cannot recover. The subject of the action, therefore, was wholly distinct from the contract between the parties, and from any claim of the defendant for money due him from the plaintiff under that contract. The case of People v. Dennison (84 N. Y. 280), therefore, applies. If this claim should be sustained, and the plaintiff should fail to prove on the trial that the defendant had unlawfully converted his money by collecting it without authority, the plaintiff must fail in his action; yet the defendant could proceed under the counter-claim, and recover an affirmative judgment against the plaintiff upon the contract. To establish a counter-claim in an action in tort under section 501 of the Code, the cause of action must have arisen out of the transaction set forth in the complaint as Estate of Lawrence. the foundation of the plaintiff's claim, or be connected with the subject of the action, and this counter-claim alleged in the answer of the defendant, not arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or being connected with the subjectmatter of the action, is not allowed by that section. The demurrer must, therefore, be sustained, and judgment ordered for plaintiff, with costs, with leave to defendant to amend his answer within twenty days, on payment of costs. ESTATE OF HORATIO J. LAWRENCE, DECEASED. SURROGATE'S COURT, NEW YORK COUNTY, MAY, 1888. Accounting of executor-when may be ordered. Where more than eighteen months have elapsed, since a testator's death, and his executors have filed no accounting, an account may be required in order to disclose the state of the funds, notwithstanding there is no party entitled to present payment. Infant children of a decedent who are entitled as such to the remainder of a fund, after the termination of a life estate, given by his will, are interested in the estate within the meaning of the Code of Civil Procedure, section 2726,-providing that a compulsory accounting by an executor or administrator, may be required upon the petition of a person interested in the estate or fund. (Decided May 4, 1888.) Application by the general guardian of infant heirs for an accounting by the executors of the decedent's will. Sufficient facts appear in the opinion. |