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. *457The 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.