The exception to the ruling of the trial judge that the answer does not contain a counterclaim presents no error, in view of the fact that it was based upon defendants’ apparent claim of an effect upon the issues for want of a reply. The ruling was substantially that the counterclaim was not .admitted for failure of plaintiff to reply, and that decision was .correct. The counterclaim in question is found so designated in the concluding lines of a long and elaborate statement, commencing, •"(4) For a further and separate defense to this action,” and containing the particulars of the contract as claimed by defendants. The Code requires a counterclaim to be separately stated, which was not done; and, where it is described as a defense, the pleader is bound by his choice, and cannot claim any benefit from the want ■of a reply. Acer v. Hotchkiss, 97 N. Y. 408, 409. . Defendants were not precluded from proof under it. This vigorous litigation over -the plaintiff’s claim to recover for the value of the 99 logs actually ■delivered by him, and used by defendants, is probably explained .by what seems to have been a hasty letter written by him in reply .to their disclaimer of a contract with him. A little timely inquiry would have shown that they were justified in hesitating at that .time to recognize the claim of one who was an apparent stranger to their dealings with Benton, and the whole dispute could prob.-ably have been adjusted without litigation.
PRYOR, J., concurs.