
    Gerard Bennett and Herman D. Levino, Respondents, v. Edison Electric Illuminating Company of Brooklyn, Appellant.
    
      When the issue presented by an equitable counterclaim should b‘e tried, at the Piñal Perm. • ,
    In an action brought to recover for work done under a written contract the defendant interposed an answer alleging as a defense- that the price agreed upon was less than that stated in the written contract, and that the discrepancy was the result of either fraud or mistake, and asked for -a reformation of the contract.
    
      Held, that even if the matter pleaded' as a defense was, in a technical sense, an equitable counterclaim, it was equally available as a defense and was capable of being disposed of without difficulty at the Trial Term; that the issue being-plain it was not error for the court to refuse to grant an order directing a trial of the equitable issues separately from the legal issues.
    Appeal by the defendant, the Edison Electric Illuminating Company of Brooklyn, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of Flay,. 1897, as'denies its motion for a trial; of the equitable issues in the action at a Special; Term, or before the trial of the' remaining issues, without prejudice to the renewal of the motion at Trial Term before the trial court; also a motion made by the plaintiffs to dismiss the defendant’s appeal from'the. order. The appeal and motion were heard together.
    The action was brought to recover compensation for certain wells which the plaintiffs sunk upon the defendant’s premises pursuant to the contract referred to in the opinion. .
    
      
      Martin W. Littleton, Edward M. Shepard and Frcmk Harvey Field, for the appellant.
    
      Edwa/rd M. Grout, for the respondents.
   Hatch, J.:

The amended answer of the defendant averred that the written contract upon which plaintiffs’ action was based did not express the true contract between the parties. The written contract provided that the plaintiffs were to receive ten dollars per thousand gallons of water for each day of twenty-four hours. The contract claimed by the defendant to have been made provided that the plaintiffs should only receive one dollar per thousand gallons of water for each day of twenty-four hours. The answer avers that this change was made either through mistake or fraud, and asked in its prayer for relief that the contract be reformed in this respect. The amended answer averring these facts pleads the same by designation as a defense, and not by way of counterclaim.

It is probably true that the matter alleged in the defendant’s answer, as above stated, constituted a counterclaim. Such a view has the sanction of authority to sustain it. (Colville v. Chubb, 20 Civ. Proc. Rep. 352; Born v. Sehrenkeisen, 110 N. Y. 60.) The matter was equally available to the defendant as a defense to the action in the manner in which it was plead, and if it was established that there was a mistake in the respect claimed it constituted a good defense to that extent, and the plaintiffs’ action would be defeated or their damages be measured by the reduced price. There is an incongruity in severing the issues in such an action and sending the equitable counterclaim to the Special Term for trial and holding the law part of the action for trial at the Trial Term. If the matter plead as a defense is in its technical sense a counterclaim, still it is equally available as a defense, and there is no difficulty of disposing of such an issue at the Trial Term, and much less circumlocution. The issue is plain and direct, should the contract read ten or one. No embarrassment can be encountered in disposing of. such an issue in an action at law. That it is proper to plead this issue as a defense and try and dispose of the same at the Trial Term, has the support of direct authority. (Kirchner v. N. H. S. M. Co., 135 N. Y. 182.)

The causé having. been sent to the Trial Term and .a trial, had, this appeal should not now be heard. '

' The motion to dismiss should be granted.

All concurred.

Appeal dismissed, with ten dollars costs and disbursements.  