
    Francesco Romano et al., Respondents, v. Francis Irsch, Appellant.
    (New York Common Pleas—General Term,
    February, 1894.)
    A counterclaim based upon an alleged breach, of a contract with a vessel which expressly avers that the plaintiffs were not the owners of the vessel negatives the liability of plaintiffs for the breach of contract and calls for no reply, and where it is tried on its merits the failure to reply does not deprive the plaintiffs of the right to interpose any defense to it which they could have set up if it had heen properly pleaded.
    In an action upon a charterparty against the consignee for freight the defendant cannot be allowed to set off damages for delay in delivery due to legal proceedings for which the owners of the vessel were not. responsible, nor the amount of wharfage he was compelled to pay to release the goods, as wharfage is not a charge against cargo.
    Where the questions on the trial have reference solely to the merits of a counterclaim interposed, the admission of the eharterparty is not prejudicial to the defendant, who is the consignee.
    An error in the admission of documents purporting to come from the. defendant without proof that he issued or authorized them is cured by subsequent proof of those facts.
    Appeal from an affirmance by the General Term of the City Court of a judgment in plaintiffs’ favor, entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial. ■
    
      John Mulhollund, for appellant.
    
      J. Pa/rher Kirlin, for respondents.
   Daly, Ch. J.

The plaintiffs sued, as owners of the bark GittMo P., for carrying a cargo of bones consigned and delivered to defendant. The charge for freight was $1,334.33, and the defendant was credited with sundry payments thereon, leaving a balance of $210.43. The answer was a general denial and a counterclaim of damages for failure to deliver the cargo in conformity with the eharterparty. It is a peculiarity of the counterclaim that it expressly avers that the. bark Giulio P. was not owned by the plaintiffs, and yet is based upon an alleged contract made with the bark. These allegations negative any liability of plaintiffs for the breach of' contract, and the answer, therefore, contained no counterclaim against them, and the plaintiffs were justified in interposing no reply. Upon the trial of the action, however, it was amply proved that the plaintiffs were the owners of the bark, and the counterclaim was tried upon its merits, with the result that the jury disallowed all the alleged items of damage. .Now it is urged that, there being no reply, the counterclaim was admitted, and there was no issue thereon to be submitted to the jury. This position is wholly untenable. The counterclaim as pleaded called for no reply, and when it was after-wards tried upon its merits this concession on the part of the plaintiffs did not deprive them of the right to interpose any defense to it which they could have set up if it had been properly pleaded. Arnold v. Angell, 62 N. Y. 508; Heyman v. Schmidt, 19 N. Y. Supp. 215.

The counterclaim was properly disposed of on its merits. The delay in the delivery of the bones was due to legal proceedings not instituted by the plaintiffs and for which they were in no wise responsible. Nor are plaintiffs chargeable with the amount of wharfage which defendant paid in order to release his goods, wharfage being no charge against the cargo.

The principal complaint of the appellant is in the admission of evidence. The cliarterparty was admitted although defendant was not named therein. It subsequently appeared, however, that he was the consignee of the cargo and that the cliarterparty was made for his benefit. Its admission, however, in no wise injured him, for the dispute upon the trial had reference solely to the merits of the counterclaim. Other documents purporting to come from defendant were admitted without proof that he issued them ■ or authorized them, but this error was cured by subsequent uncontradicted evidence that certain of them were in his handwriting and the others issued by his authorized agent. Byrnes v. Byrnes, 102 N. Y. 4. An examination of the case fails to disclose error in the rulings on the trial.

The judgment and order must be affirmed, with costs.

Bischoff and Pryor, JJ., concur.

Judgment and order affirmed, with costs.  