
    William Crompton, Respondent, v. William H. Seaich, Appellant.
    First Department,
    March 24, 1911.
    Practice — motion for judgment on default in replying to counterclaims.
    Where the amount claimed in a complaint exceeds the amount of counterclaims a motion for judgment on the counterclaims because of a failure to reply or demur thereto will not be entertained until the issues raised by the complaint have been disposed of.
    But where the complaint has been dismissed the defendant may move for judgment on the counterclaims under section 515 of the Code of Civil Procedure. It is not necessary that the motion be made at Trial Term when the issues are tried.
    Appeal by the defendant, William H. Seaich, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk- of the county of New York on the 9th day of June, 1910, denying the defendant’s motion for judgment on two counterclaims.
    
      
      Graham, Sumner, for the appellant.
    
      Joseph Fettretch, for the respondent.
   Scott, J.:

Defendant appeals from an order denying his motion for judgment under section 515 of the Code of Civil Procedure. The plaintiff sued for $30,000, claimed to be the value of certain stock which, as it was alleged, defendant had agreed to deliver to plaintiff. The answer included a defense to the plaintiff’s cause of action and two counterclaims, one upon a promissory note and one for money loaned, the two together aggregating $4,868.46. No reply was served to either of these counterclaims and the defendant thereupon became entitled to move for judgment thereon. (Code Civ. Proc. § 515.) There still remained to be disposed of, however, the issue raised by the complaint and so much of the answer as constituted a defense thereto, and as the amount claimed in the complaint exceeded the amount of the counterclaims, a motion for judgment on the counterclaims could not be entertained until the issue raised as to plaintiff’s claim had been disposed of. This we recently held. (Crompton v. Seaich, 142 App. Div. 431.) Now, that issue having been disposed of by the dismissal of the complaint at Trial Term, no obstacle stands in the way of entering judgment for defendant on his counterclaims. It is suggested that application should have been made at Trial Term at the same time that the issues were tried. It is obvious that this view is erroneous. There was no issue to try as to the counterclaims. They stood confessed. All that could properly be disposed of at Trial Term were the issues raised by the complaint and the defense thereto contained in the answer. Muldoon v. Blachwell (84 N. Y. 646), relied on to sustain the order appealed from, is wholly inapplicable. In that case the answer was ambiguous and it was not apparent whether or not a counterclaim was intended to be pleaded. The Court of Appeals said that, having omitted to insist upon his counterclaim in the court below, the defendant could not, for the first time, seek to avail himself of it on appeal. In the present case the defendant’s claim arose before the trial of the issues, and when those issues had been tried and the sole obstacle to an entry of judgment upon the counterclaim had been removed, he promptly moved for judgment.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Ingraham, P. ■ J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  