the courts incline against construing the pleading as embodying a cause of action for a tort. Goodwin v. Griffis, 88 N. Y. 629, 639, 640. And, under such circumstances, authority and reason sup- port the rule that where the answer is susceptible of either construction, the defendant, by using his cause of action as a counterclaim in a case where it would be a valid counterclaim only on the basis of an election to counterclaim for breach of contract, evinces his election to hold the plaintiff responsible for the violation of his contract, and not for the tort. Becker v. Northway, 44 Minn. 61, 46 N. W. Rep. 210. Whether defendant can now waive the tort by amending his answer is not before us for decision, but there seems to be strong authority against his retracing his steps in pleading under such circumstances. The cases appear to hold that the election is irrevocably made when the pleading is served, provided the pleader has full knowledge of the facts. We do not, however, wish to foreclose this point before it arises, and therefore refrain from expressing any opinion on it. We merely cite the decisions which hold that the election, when once made, is final. Terry v. Munger, 121 N.Y. 161, 24 N. E. Rep. 272, and cases in note to Fowler v. Bank, [21 N. E. Rep. 172,] 10 Am. St. Rep., at pages 487 to 494.
Having reached the conclusion that the counterclaim was not proper under subd. 2 of § 4915, we will now inquire whether it comes within the provisions of the first subdivision. Does the counterclaim arise out of the contract or transaction set forth in the interveners’ complaint as the foundation of their claim to this freight money? The contract which is the foundation of this claim is the written agreement already referred to. The wrongful seizure of the boat does not arise out of that contract. The seizure was independent of that agreement. It had no more connection with the contract than a seizure by a third person would have had. Is it in any manner connected with the subject of the action? The words “subject of the action” are of rather indefinite significance. In our judgment the subject of the interveners’ intervention is their right to the earnings of the boat under this
