
    THE AMERICAN DOCK AND IMPROVEMENT COMPANY, Plaintiff and Respondent, v. ROBERT H. STALEY, Defendant and APELLANT.
    ELECTION BETWEEN CAUSES OF ACTION^-
    Motion for should be made before the cause is called on for trial.
    COUNTER-CLAIM—
    When answer will not be regarded as pleading it.
    When it asks that the sum therein mentioned may be set-off against any sum that may be allowed to the plaintiff.
    SET-OFF—
    Defense of needs no reply.
    Before Curtis and Sedgwick, JJ.
    
      Heard June, 1875 ;
    
      Decided August 3, 1875.
    
      George L. Ingraham, for appellant.
    
      R. N. De Forest, for respondent.
    The action was to recover wharfage for sundry canal boats and vessels.
    The complaint contained two causes of action—one alleging an agreement by defendant to pay for wharf-age certain specified prices, the other alleging an agreement by defendant to pay for wharfage so much as the same should be reasonably worth.
    The answer, after putting in issue some of the allegations contained in the first cause of action, proceeded thus:
    
      Second. And this defendant further answering the said complaint alleges (it then set out an agreement between the plaintiff and defendant, and a breach of such agreement) and then concluded thus : “And that in consequence of the said refusal of the said plaintiffs to perform the said agreement, this defendant suffered damage, amounting to the sum of three hundred dollars, and which sum this defendant asks may be set off against any sum' that may be'allowed the plaintiff in this adtion. And, excepting as hereinbefore admitted, this defendant denies each and every allegation contained in the said complaint constituting the first cause of action.
    “ Third. And this defendant, in answer to the second cause of action in the said complaint, denies each and every allegation therein contained.
    “ Wherefore, defendant demands judgment that the complaint of the plaintiffs herein be dismissed, with costs.”
    On the trial defendant moved that plaintiff be compelled to elect between the two causes of‘action.
    The motion was denied, and defendant accepted. Plaintiff had a verdict.
    On appeal it was urged that defendant was entitled to judgment, on the ground that the answer set up a counter-claim to which there was no reply.
   Curtis, J.,

wrote for affirmance, holding the proposition stated in the head-note.

Sedgwick, J., concurred.  