Although it has been decided in Chelsea Exchange Bank v. Munoz (202 App. Div. 702) that rule 113 of the Rules of Civil Practice may be invoked by the plaintiff even though defendant sets up a counterclaim, the fact remains that where the counterclaim, as in the instant case, is independent of plaintiff’s cause of action, the court is practically called upon to condemn a defendant’s cause of action. The extension of the rule to such a case is based on the bare words of the rule itself because logically there seems to be no reason why a party who sets up a counterclaim should have it either measured or disposed of by a standard or method other than that applicable to plaintiff’s own cause of action.
The English cases cited in the Chelsea opinion indicate with what restrictions and reluctance the corresponding rule is administered in the English courts. In one (Sheppards & Co. v. Wilkinson & Jarvis, 6 T. L. R. 13) it is said: “ The court had no power to try such a counterclaim on such an application, but if they thought it so far plausible that it was not unreasonably possible for it to succeed if brought to trial, it ought not to be excluded.” In the case before us, the facts of which are sufficiently stated in the dissenting opinion, it is quite apparent that defendant’s services, concededly rendered to plaintiff, were valuable and the ordinary presumption obtains that defendant was entitled to compensation therefor.
The controversy is the result of plaintiff’s contention that defendant expressly agreed to render these services gratuitously, which defendant denies. To overcome the presumption in defendant’s favor, plaintiff relies upon the circumstance that defendant during the intervening three or four years never made any claim for compensation, but on the contrary, sought the loan, sued upon, from the plaintiff as a favor. Without attempting a comprehensive review of the considerations which might affect the minds of the triers of the facts, it. suffices to point out that a jury might well believe that defendant was actuated, whether rightly or not, by the embarrassment of friendly relations in not proffering a formal *332claim for his services, or that he delayed making a demand in the hope of receiving a reciprocal favor in return. It might indeed conclude that plaintiff’s insistence on repayment of the money as a loan Was as inconsistent under the circumstances as plaintiff would have the court believe has been the course of conduct of defendant. Of course, the mere fact that defendant has made no formal claim for payment within the period allowed by statute cannot be determinative of the validity of his claim, otherwise we would be adopting a statute of limitations different from that prescribed by law.
The case presents to my mind an issue which is not only peculiarly but perhaps exclusively adapted to decision by jury after defendant has been heard, and certainly not one which should be disposed of summarily on affidavits. It was said in Saw v. Hakim (5 T. L. R. 72), also cited in the Chelsea case, that 'Manisty, J., “had the greatest distrust of affidavits upon disputed questions of fact and would never consent to try such questions upon affidavit.”
In my opinion, therefore, the order denying the-motion for summary judgment should be affirmed, with costs.
Order affirmed, with ten dollars costs.
Levy, J., concurs; Churchill, J., dissents in opinion.