WARD, J.:

Section 3068 of the Code of Civil Procedure provides that "where an issue of fact or an issue of law was joined before the justice, and the sum for which judgment was demanded by either party in his pleadings exceeds fifty dollars, * * * the appellant may, in his notice of appeal, * * * demand a new trial in the appellate court, and thereupon he is entitled thereto whether the defendant was or was not present at the trial."

The motion in the County Court to strike the cause from the calendar was upon the ground that the case was not a proper one for a new trial, and to have the appeal declared to be on questions of law only. The amount claimed in the complaint was not sufficient to entitle the parties to a new trial. The plaintiff bases his contention that he is entitled to a new trial upon the defendant's answer in the Justice's Court. Whether that contention can be maintained depends upon the question whether the defendant's answer alleges a counterclaim to the plaintiff's complaint upon which the defendant may be entitled to judgment. The defendant is not permitted to allege any defense and conclude with a demand for judgment so as to form the basis for a new trial under the section of the Code cited, but the answer must contain a counterclaim as against the cause of action set forth in the complaint.

An improper pleading cannot be made the basis of a demand for a new trial in the County Court under the provisions of the Code applicable to appeals from judgments rendered by justices of the peace, and if an appeal is taken for a new trial based upon such improper pleadings, the County Court may refuse a new trial and send the case to the law calendar to be heard simply as a question of law. ( Harvey v. Van Dyke, 66 How. Pr. 396; Moore, Overseer of the Poor, v. Trimmer, 6 N.Y. Supp. 430; Hinkley v. Troy A.H.R.R. Co., 42 Hun, 281; Denniston v. Trimmer, 27 id. 393; Houghton v. Kenyon, 38 How. Pr. 107, approved by the General Term of the fourth department in Baum's Castorine Co. v. Thomas, 92 Hun, 2.)

By section 501 of the Code of Civil Procedure, which gives the definition of a counterclaim, the counterclaim must tend in some way to diminish or defeat the plaintiff's recovery, and, except in actions on contract, it must be a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. An examination of the pleadings in this case discloses an attempt on the part of the defendant to counterclaim one trespass or wrong against another. The plaintiff's cause of action is for the destruction of his crops and grass and the injury to his land. The defendant's cause of action arises from the wrongful acts of the plaintiff in obstructing a highway. It is immaterial that the trespasses were committed upon the same premises. The trespasses were distinct and independent, and one does not constitute a counterclaim as against the other. ( Lehmair v. Griswold, 8 J. S. 100; Chamboret v. Cagney, 2 Sweeny, 378, 385; Barhyte v. Hughes, 33 Barb. 320; Green v. Parsons, 27 Wkly. Dig. 544; 14 N.Y. St. Repr. 97; Smith v. Hall, 67 N.Y. 48; People v. Dennison, 84 id. 272; Rothschild v. Whitman, 132 id. 472; Adams v. Loomis, 8 N.Y. Supp. 17.)

In Green v. Parsons ( supra) it was held that it must be alleged that the matters set out in the counterclaim arise out of the transaction which is the foundation of the plaintiff's claim, or that it is connected with the subject of it, or the answer would be insufficient on demurrer. This allegation is wanting in the answer before us. The words "subject of the action" mean the facts constituting the plaintiff's cause of action. ( Chamboret v. Cagney and Lehmair v. Griswold, supra, and approved in Rothschild v. Whitman, 132 N.Y. 472, 476.)

The obstruction of the highway by the plaintiff cannot be said to have arisen out of the subject of the plaintiff's action, which was the destruction of the plaintiff's crops and the injury to his land.

The appellant's counsel makes a point that, inasmuch as the respondent (the defendant) interposed what he claimed to be a counterclaim in the Justice's Court, he could not be heard in the County Court to claim that it was otherwise. The jurisdiction of the County Court as to whether a new trial should be had, depended upon the fact whether the defendant in the Justice's Court had properly alleged a proper counterclaim to the plaintiff's cause of action. The court was bound to pass upon that question of jurisdiction whenever it was presented to it by a party to the action, and the County Court should have refused a new trial and granted the motion to strike the cause from the calendar.

The order of the County Court should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements.