#### Joseph A. Steinmetz and Joseph A. Janney, Jr., Appellants, *v.*The Cosmopolitan Range Co., Respondent.

(Supreme Court, Appellate Term,

June, 1905.)

Counterclaim—“Subject of the action”—Code, § 501—Evidence as to value.

The words “ subject of the action ”, as used in section 501 of the Code of Civil Procedure, denote the plaintiffs’ principal primary-right to enforce which the action is brought.

Where upon cross-examination it appears that a witness based his testimony as to the value of the goods in suit, upon statements of third persons not shown to be correct, the jury should be instructed to disregard the testimony.

Appeal by the plaintiffs from a judgment rendered in favor of the defendant in the City Court of the city of New York.

Hastings & Gleason (M. Mackenzie, of counsel), for appellants.

Reynaud & McKinney (Albert Reynaud, of counsel), for respondent.

Dugro, J.

The counterclaim would be connected with the subject of the action if the goods sold in whole or in part were to be made from any of the patterns in plaintiffs’ charge. The authorities are not in harmony as to the meaning of the words *“*subject of the action ” as used in section 501, Code of Civil Procedure, but we incline to that set forth in section 651 of Pomeroy’s Code Remedies, Fourth Edition. There it is stated that the language denotes the plaintiff’s principal primary right to enforce -which the action is brought. Taken in this sense the counterclaim in this case is proper, if the goods in question were to be made from the patterns, for the defendant’s right to the patterns was connected with the plaintiff’s right in view of the fact that the patterns were impliedly to be used in connection with the making of the goods. The learned trial *612justice, in submitting the question of the value of the patterns to the jury, stated to the jury that there was testimony offered by the defendant that the value of the patterns was $1,500. There was no such competent evidence. The witness Buzzini, who testified in behalf of defendant that the value of the patterns was $1,500, on cross-examination stated that he had based this value on the reports and various figures given him as to cost by some person or persons, probably he referred to the pattern-maker and another; that he didn’t know anything about them personally and didn’t know anything about the labor. This evidence of value was based upon statements which were not shown to be correct, and so was of no value. The plaintiff moved to strike out the testimony of this witness, and though his motion was probably too broad, still he made clear to the court that he desired to have this evidence of value out of the case, upon the ground that it was based upon hearsay. Under the circumstances the court should have charged the juiy to disregard the evidence. He did otherwise, manifestly to the prejudice of the plaintiffs.

The judgment will be reversed and a new trial granted, with costs to appellant to abide the event.

Scott, J., concurs.

MacLean, J.

(concurring). The sale of one commodity and the conversion of another are independent transactions, and the cause of the counterclaim may not be said to be connected with the subject of the action for it does not appear that the articles therein alleged to have been converted had been used in whole or in part in the manufacture of the specific goods, the sale of which constituted the claim of the plaintiffs. Starr Cash Car Co. v. Reinhardt, 2 Misc. Rep. 116; 20 N. Y. Supp. 872. The counterclaim should have been dismissed. Wherefore the judgment must be reversed and a new trial ordered.

Judgment reversed and new trial granted, with costs to appellants to abide event.