#### John N. Spaus, Plaintiff, *v.*Max Stolwein, Defendant.

(Supreme Court, New York Special Term,

December, 1911.)

Replevin — Right of action and defenses — Defenses — Set-off and counterclaim.

Set-off and counterclaim — Actions in which counterclaim or set-off may be allowed — Replevin.

Replevin is a possessory action and a counterclaim for damages can neither diminish nor defeat a claim for the recovery of specific chattels.

Where a certain machine was sold under a contract of conditional sale with reservation of title in the vendor until paid for, an answer in an action of replevin to recover the machine which alleges that it was not constructed according to the contract, that defendants had been subjected to a daily loss in operating it and to certain expenses for installing it, that they had been damaged by the delay in its delivery and that its value is less than the purchase price agreed to be paid, but there is no allegation that the installments of the purchase price or any of. them have been paid, is subject to demurrer for insufficiency.

The breach of warranty relied upon to sustain the principal items of damage alleged being incident only to a completed sale, the answer was insufficient to justify the detention of the machine by the defendants.

Action in replevin.

John J. Schwartz, for plaintiff.

S. 1ST. Tuckman, for defendant.

*2GtReewbaum, J.

Plaintiff’s action is in replevin. The separate defense and counterclaim are pleaded together. As a counterclaim- the demurrer thereto must -be sustained, for the reason that it in no way tends “ to diminish or defeat the plaintiff’s recovery.” Replevin is a possessory .action and a counterclaim for damages can neither diminish nor defeat a claim for the recovery of specific chattels. Treated as a complete defense the facts alleged by- the defendant must tend to defeat the title of plaintiff to the chattels involved or his right to their possession. The answer sets up the purchase of certain machinery, being the chattels sought to be replevined herein; that the said machinery was purchased under a written agreement with plaintiff’s assignor and was to be of certain dimensions and equipped in a specified manner; that the price therefor was to he $2,400, to be paid in installments at certain times, and that “ the title of the said machine shall remain in the name of the party of the first part (plaintiff’s assignor) until said mentioned purchase' price is paid therefor.” It is not alleged that defendants- have paid said installments or- any of them, but it is averred that the machine was not constructed in accordance with' the provisions of the contract; that the defendants have been subjected to a daily loss in operating -said machine and to. certain expenses in installing it; -that they have incurred damages by reason of the delay in the delivery of the machine, and that the value of the machine delivered is $1,300 less than the price contracted for. Title to the machine did not vest in defendants until they paid for it, and as the warranty the breach of which defendants apparently rely upon to sustain the principal items of damage may be treated only as an incident of a completed sale, there is'no sufficient plea to justify its retention by defendants. Osborn v. Gránte, 60 1ST. Y. 540. Ho lien upon the machine is asserted -and no appropriate allegations may be found upon which to predicate the right to a lien. I am of opinion that the defense alleged is insufficient in law and that the demurrer must be sustained. • ' '

Demurrer sustained, with costs, with leave to defendant to answer upon the payment of costs.