
    DANIEL S. READ and another, Respondents, v. NICHOLAS H. DECKER, Appellant.
    
      Counter-claim — what constitutes— Contract — condition precedent.
    
    The defendant agreed to perform work and furnish materials in constructing additional tracks for tlie New York Central and Hudson River Railroad Company, the contract providing “ that all stone obtained from excavations which may, in the opinion of the engineer, he suitable for masonry, shall * * * be the property of the company.” Subsequently, the defendant sub-let a portion of the work to the plaintiff, by a contract containing the same provision-In an action brought by the plaintiff upon this sub-contract, the defendant, in his answer, set up a general denial and payment. Upon the trial he offered to prove that the plaintiff took from the excavations 1,149 yards of stone, and used the same; that the value thereof was $1,546.80, with which amount defendant was charged on his final settlement with the company. This evidence was, against his objection and exception, excluded. Held (1), that the defendant’s claim was in the nature of a counter-claim, and should have been pleaded as such; (3), that as it was not alleged that the stone were, in the opinion of the engineer, suitable for masonry, they did not become the property of the company, and the plaintiff was entitled to use them.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    
      II. B. Oushney, for appellant. D. 8. Morrel, for respondent.
   Opinion by

Leakned, P. J.

Present —LeaRned, P. J., Boabdman and Bookes, JJ.

Judgment affirmed, with costs.  