
    Joseph Blumehthal, Respondent, v. Louis Katz and Berel Katz, Appellants.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Municipal Courts — Procedure — Pleading — Amendments — Time for' amendments — Amendments at trial.
    Upon the admission at the trial of the plaintiff’s cause of action and the plaintiff’s motion for judgment on the defendants’ counterclaim, on the ground that it was only in favor of one of the two defendants, a motion by the defendants, to amend the answer by stating the counterclaim as in favor of both of them should be granted; and judgment for the plaintiff on the denial of such motion should be reversed on appeal.
    Appeal by the defendants from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, second district, rendered in favor of the plaintiff.
    Barnett E. Kopelman, for appellants.
    Max Silverstein, for respondent.
   Giegerich, J.

The defendants were sued as copartners, the alleged cause of action being for goods sold and delivered. The answer contained a general denial and also set up a. counterclaim for commissions alleged to have been earned by otie of the defendants under an employment by the plaintiff. When the case was called for trial, the defendants conceded the plaintiff’s claim, whereupon the plaintiff moved for judgment upon the ground that the counterclaim as set up was in favor of one of the defendants alone. Thereupon the defendants’ counsel moved to amend the answer so as to make the counterclaim in favor of both defendants. This amendment the. court.refused to allow and granted judgment in favor of the plaintiff.

The counterclaim as set up in the answer was not available as such. Hunter v. Booth, 84 App. Div. 585. The proposed amendment, however, should have been allowed. The amendment would aid substantial justice and enable the rights of the parties to be determined in one action.

What testimony may be offered to sustain the counterclaim has no place in determining whether or not such a pleading should be interposed.

Judgment reversed, with ten dollars costs to appellant to abide the event, and a new trial ordered.

■ Lehman and Pendleton, JJ., concur.

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