
    Lazarus Blaut, Appellant, v. Albert Gross et al., Respondents.
    (Supreme Court, Appellate Term,
    June, 1905.)
    Counterclaim — Evidence — Rules as to admissibility — Erroneous exclusion of evidence.
    The general rules as to the admissibility of evidence under a counterclaim are the same as under a complaint.
    Where, in an action for dyeing certain fox tails, the defendant answered with a general denial and counterclaimed for a certain number of fox tails spoiled and gave affirmative evidence thereon, the exclusion of testimony on the part of the plaintiff as to former declarations of one of the defendants, tending to show that they claimed for a less number of fox tails and also as to the condition thereof as originally claimed by the same defendant, is reversible error.
    Appeal by the .plaintiff from a judgment rendered in favor of the defendants in the Municipal Court of the city of New York, seventh district, borough of Manhattan.
    Henry Kuntz, for appellant.
    Meyer & Godson, for respondents.
   MacLean, J.

Herein, the plaintiff orally complained for compensation for dyeing 985 fox tails; the defendants likewise answered with a general denial under which they adduced evidence to show that the dyeing was done not according to agreement, hut badly. Had the case rested with this, there might or might not have arisen the question whether the view taken of the defendants’ evidence were not so favorable and that of the plaintiff so disparaging as to call for consideration. However, the defendants also set up a counterclaim, to wit for 123 red fox tails spoiled and gave affirmative evidence thereon. Then to prove by former declarations of one of the defendants that it should have been for a much smaller number the plaintiff’s counsel called his manager and asked: “ Did you have a conversation with Mr. Engel in relation to the fox tails ? ” and on objection said: “ I want to prove that all they claimed was for 31 fox tails and offered to pay him forty dollars,” but the question was excluded by the court, saying: “Objection sustained on the ground that it is not in rebuttal.” Another similar question but referring more specifically to the number and condition of the tails as originally claimed by the same defendant was excluded on the same ground. The exclusion of these questions was reversible error. The plaintiff was not to anticipate in his evidence that to be given in support of the affirmative of the defense. The general rules regarding admissibility of evidence under a counterclaim are, as were those respecting set-off or recoupment, the same as those regulating evidence under a complaint or declaration. The questions were not in rebuttal of the evidence given under the general denial, but in contradiction of that offered to support the counterclaim. They should have been allowed. “ Justice demands that each party be given an equal opportunity to countervail the affirmative evidence which his opponent has produced.”

' The judgment should be reversed.

Scott and Dtjgko, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  