(concurring). I concur in the result in so far as it holds the counterclaim under consideration to be a proper one under subdivision 1 of section 266 of the Civil Practice Act. While the stricter rule of interpretation in Bernheimer v. Hartmayer (50 App. Div. 316) and Marshall v. Friend (35 Misc. 101; affd., 66 App. Div. 624) might impel a different result, nevertheless in *281the spirit of liberal construction and the avoidance of superfluous litigation, I believe that the counterclaim should be tried in connection with the main issue. I do not deem it proper, however, that the respondent should be permitted to amend her pleadings for the fourth time without terms.
Present — Bijue, McGoldeick and Levy, JJ.