
    BLUMENTHAL v. KATZ et al.
    (Supreme Court, Appellate Term.
    December 22, 1911.)
    1. Set-Oee and Counterclaim (§ 44) — Mutuality oe Demands — Partnership.
    Where defendants are sued as partners, a counterclaim for commissions earned by one partner under an employment by plaintiff is not available.
    [Ed. Note. — For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 91-99; Dec. Dig. § 44.]
    2. Pleading (§ 262) — Amendments — Allowance.
    Where, in an action against partners, a counterclaim for commissions earned by one of them was interposed, the refusal to permit the partners to amend the counterclaim, so as to make it in favor of both partners, was erroneous.
    [Ed. Note. — For other cases, see Pleading, Dec. Dig. § 262.]
    3. Pleading (§.262) — Amendments — Allowance.
    The court, in determining whether or not an amended answer, setting up a counterclaim, should be allowed, may not consider what testimony may be offered to sustain the counterclaim.
    [Ed. Note. — For other cases, see Pleading, Dec. Dig. § 262.]
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Joseph Blumenthal against Louis Katz and another: From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.
    Argued before GIEGERICH, LEHMAN, and PENDLETON, JJ.
    Barnett E. Kopelman, for appellants.
    Max Silverstein, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GIEGERICH, J.

The defendants were sued as copartners; the alleged cause of action being for goods sold and delivered. The answer contained a general denial, and also set up a counterclaim for commissions alleged to have been earned by one of the defendants under an employment by the plaintiff. When the case was called for trial, the defendants conceded the plaintiff’s claim, whereupon the plaintiff moved for judgment, upon the ground that the counterclaim as set up was in favor of one of the defendants alone. Thereupon the defendants’ counsel moved to amend the answer, so as to make the counterclaim in favor of both defendants. This amendment the court refused to allow, and granted judgment in favor of the plaintiff.

The counterclaim as set up in the answer was not available as such. Hunter v. Booth, 84 App. Div. 585, 82 N. Y. Supp. 1000. The proposed amendment, however, should have been allowed. The amendment would aid substantial justice, and enable the rights of the parties to be determined in one action. What testimony may be offered to sustain the counterclaim has no place in determining whether or not such a pleading should be interposed.

Judgment reversed, with $10 costs to appellant to abide the event, and a new trial ordered. All concur.  