The opinion
Inglis, C. J.
(dissenting). The rule governing the filing of counterclaims is, I believe, correctly stated in the majority opinion. I disagree only with the application of the rule made by the majority in the present case.
In the complaint it is alleged that a landlord and tenant relationship existed between the plaintiff and the defendants. The cause of action set up in the complaint ivas for a breach of the duties of the defendants to pay rent and to refrain from committing waste. These duties arose out of the relationship of landlord and tenant. The cause of action alleged in the counterclaims ivas a breach of the plaintiff’s •duty to use reasonable care to keep reasonably safe for use by the defendants the portion of the apartment house reserved for the common use of the tenants. This duty of the plaintiff arose out of the same relationship of landlord and tenant as that counted •upon in the complaint. In other words, the matter in controversy involved in the complaint and the matter in controversy involved in the counterclaims both arose out of the relationship of landlord and tenant existing between the parties. Accordingly, a consideration of the matter set up in the counterclaims is necessary for the full determination of the rights '■of the parties with reference to the relationship of landlord and tenant counted upon in the complaint. Under the rule stated in the majority opinion, therefore, the counterclaims were properly filed.
In this opinion Baldwin, J., concurred.