This action was brought to recover upon a bond given by George Buckmaster, as assignee of the bankrupt, for. the benefit of creditors as principal and by the defendant as surety. The complaint alleges the execution of the bond conditioned that if the said Buckmaster should faithfully execute and discharge the duties of such assignee, and duly account for all moneys received by him as such assignee, then the obligation to he void; that on an accounting in the United States District Court a final judgment or order was made requiring Buckmaster to pay $3,502.97, the amount due by him to the plaintiff; and that subsequently, in an action in the United States Circuit Court, a judgment was entered in favor of plaintiff against Buckmaster for that amount and interest.
The defendant interposed an answer which, after admitting certain allegations of the complaint and denying others, set up a first affirmative defense, and also what is called “ For a second affirmative defense and by way of counterclaim,” in which it repeats the allegations set up as the first affirmative defense, alleges that in view of the premises the plaintiff should be enjoined and restrained from prosecuting this action, or from prosecuting any action or taking any steps against this defendant in this or any other court, based upon this order of the District Court of the United States, or upon this judgment of the Circuit Court of the United States set forth in the complaint. There is also a third affirmative defense and a fourth affirmative defense and counterclaim, which realleges all of the allegations of the third affirmative defense, and alleges that the plaintiff should be restrained from prosecuting this action or any action based upon the said order of the District Court and the judgment of the Circuit Court. The defendant then demands *175judgment that the complaint be dismissed and that the plaintiff be provisionally and perpetually enjoined and restrained from prosecuting this action, or from prosecuting any action against this defendant in this or any other court based upon this order of the District Court and the judgment of the Circuit Court, and that the defendant have such other and further relief. The plaintiff replied to this counterclaim. Thus, by the answer, the cause of action set up in the complaint was at issue, and by the reply the cause of action set up as a counterclaim was at issue. The defendant having noticed the case for trial at Special Term the plaintiff made a motion to strike the cause from the calendar. Whereupon the defendant made a motion that the issues presented upon the counterclaim and reply thereto should be first tried at Special Term before the cause of action arising upon the complaint and answer be tried at Trial Term. The court granted this motion, and from that order the plaintiff appeals.
Section 974 of the Code of Civil Procedure provides: “ Where the defendant interposes a counterclaim and thereupon demands an affirmative judgment against the plaintiff the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim and demanding the same judgment.”
It is quite evident that the counterclaim interposed by the defendant is within this section. It alleges certain facts upon which it is claimed the defendant is .entitled to an affirmative judgment enjoining the plaintiff from prosecuting this action or from prosecuting any action against the defendant based upon an order of the United States District Court and the judgment of the United States Circuit Court. This being pleaded as a counterclaim and affirmative relief being asked, such as can only be granted by a court of equity, it follows that the issue joined by the reply to that counterclaim must be tried at Special Term. The plaintiff did not see fit to demur to the counterclaim, as he might have done'if the counterclaim was insufficient to justify affirmative judgment, but replied to it and, therefore, left an issue as to whether or not the defendant was entitled to the relief asked to be determined upon the trial. In determining how such an issue must be tried the court should not examine into the merits of the controversy. The defendant has set *176up a counterclaim and demanded affirmative relief, and to that the plaintiff replied. The only way that the issue raised by this counterclaim and reply can be disposed of is by a trial by a court competent to try the question as if it had arisen upon an action brought by the defendant against the plaintiff for the relief demanded; nor does the fact that the defendant has set up the same facts upon which he bases his counterclaim destroy his right to have the issue presented by the counterclaim and reply thereto tried at Special Term. The Code is mandatory. It provides that the mode of trial of an issue arising upon a counterclaim is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim and demanding the same judgment. Therefore, the court below was bound to accede to the defendant’s demand that the cause of action upon which this counterclaim is based should be tried at Special Term. "Where an equitable counterclaim is set up in an action at law that equitable counterclaim is to be first disposed of and then the action brought on for trial as an action at law. (Colville v. Chubb, 14 N. Y. Supp. 433 ; affirmed by General Term, Id. 717; Goss v. Goss & Co., 126 App. Div. 748.)
The laches of the moving party does not affect his right to have this counterclaim tried as an action in equity. The plaintiff, if he desired promptly to dispose of the action, could have made the motion, but as it appears that the equitable cause of action, set up as a counterclaim, could not have been tried before a jury, and as no judgment can be entered until that is disposed of, the question of laches is not material.
I can see no escape from the conclusion, therefore, that this equitable counterclaim must be disposed of by a trial at Special Term ; that the court was correct in ordering it to be first tried, and the order must, therefore, be affirmed, with ten dollars costs and disbursements.
There was also argued with this appeal an appeal from an order denying the motion to strike this case from the Special Term calendar. (Cohen v. American Surety Co., No. 2, 129 App. Div. 177.) It appeared that the defendant without obtaining an order that the issue presented by the reply to the counterclaim be first tried, noticed the cause for trial at Special Term'and placed the same *177upon the calendar; whereupon the plaintiff made a motion to strike the same from the calendar. This motion having been made, the defendant then moved for an order directing the issues presented by the counterclaim to be first tried. This order was granted, and we now affirm it. While it was probably irregular to place this case upon the Special Term calendar until an order had been obtained directing that the issues raised upon the counterclaim be tried at the Special Term, the court having granted such an order, the case was then properly upon the calendar, and the court then properly refused to strike it from the calendar. Both orders were entered at the same time, and there seems to be no reason for reversing this order.
It follows that the order denying the motion to strike the case from the Special Term calendar should be affirmed, with ten dollars costs and disbursements.
Scott, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied.