
    Morris, Tasker & Co., Resp’t, v. Lee Chamberlin, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 21, 1891.)
    
    Pleading—Counterclaim must be described as such to require reply.
    An answer set up facts arising out of the contract or transaction set forth in the complaint which if described as a counterclaim would have been sufficient to constitute one. These facts, however, were only-stated in the answer as matters of defence. Held, that no reply was-necessary.
    Appeal from order denying motion made by defendant forudgment on the pleadings for want of a reply.
    
      Rufus M. Townsend, for app’lt; C. S. McChesney, for resp’t.
   Learned, P. J.

The action is for goods sold and delivered. A schedule of the items is annexed to the complaint, showing, the goods to be what are called “Ells and Fees.”

The answer set up for the defense a contract for the goods specified in the complaint, and also for other goods, being certain sizes and quantities of pipe, which were not delivered at the time specified, and a portion of which were afterwards tendered on condition of immediate payment of the price. It avers, also, that by this breach of contract defendant has suffered damages to a certain amount, which he “demands to recover from the plaintiff to the destruction of plaintiff’s claim in this action and to recover the balance.” The defendant did not state that this was a counterclaim.

The plaintiff did not reply.

The defendant noticed the cause for trial at the circuit to be held May 19 th.

He then moved for a judgment on the pleadings May 3d, on the ground that no reply had heen served. The motion was denied and defendant appeals.

How, it is true that the matter set up in the answer constituted a distinct cause of action arising out of the contract or transaction set forth in the complaint, and is, therefore, a counterclaim as distinguished from a defense. Code, § 501, sub. 1.

But in order that the plaintiff shall understand that the defendant so treats the allegations, the defendant must expressly state that they are averred as a counterclaim. This must be done so that plaintiff shall know that a reply is necessary. There is ho good sense in requiring the plaintiff to conjecture whether the defendant intends a counterclaim as a defense. The defendant must state this plainly. Otherwise the defendant is misled. If the defendant does not say that he intends a counterclaim no reply is needed. Eq. Life Ass. v. Cuyler, 75 N. Y., 514; Acer v. Hotchkiss, 97 id., 408; Avery v. N. Y. C. & H. R. R. R. Co., 6 N. Y. Supp., 547; 24 N. Y State Rep., 918; Wood v. Gordon, 13 N. Y. Supp., 595; 38 N. Y. State Rep., 455; Favilla v. Moretti, 13 N. Y. Supp., 707.

This is a plain rule which prevents any mistake. It is abundantly settled by precedent, and is reasonable.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.  