The amended answer of the defendant averred that the written contract upon which plaintiffs’ action was based did not express the true contract between the parties. The written contract provided that the plaintiffs were to receive ten dollars per thousand gallons of water for each day of twenty-four hours. The contract claimed by the defendant to have been made provided that the plaintiffs should only receive one dollar per thousand gallons of water for each day of twenty-four hours. The answer avers that this change was made either through mistake or fraud, and asked in its prayer for relief that the contract be reformed in this respect. The amended answer averring these facts pleads the same by designation as a defense, and not by way of counterclaim.
It is probably true that the matter alleged in the defendant’s answer, as above stated, constituted a counterclaim. Such a view has the sanction of authority to sustain it. (Colville v. Chubb, 20 Civ. Proc. Rep. 352; Born v. Sehrenkeisen, 110 N. Y. 60.) The matter was equally available to the defendant as a defense to the action in the manner in which it was plead, and if it was established that there was a mistake in the respect claimed it constituted a good defense to that extent, and the plaintiffs’ action would be defeated or their damages be measured by the reduced price. There is an incongruity in severing the issues in such an action and sending the equitable counterclaim to the Special Term for trial and holding the law part of the action for trial at the Trial Term. If the matter plead as a defense is in its technical sense a counterclaim, still it is equally available as a defense, and there is no difficulty of disposing of such an issue at the Trial Term, and much less circumlocution. The issue is plain and direct, should the contract read ten or one. No embarrassment can be encountered in disposing of. such an issue in an action at law. That it is proper to plead this issue as a defense and try and dispose of the same at the Trial Term, has the support of direct authority. (Kirchner v. N. H. S. M. Co., 135 N. Y. 182.)
*412The causé having. been sent to the Trial Term and .a trial, had, this appeal should not now be heard. '
' The motion to dismiss should be granted.
All concurred.
Appeal dismissed, with ten dollars costs and disbursements.