#### Gustav Lafond et al., Plaintiffs, *v.*Jules Lassere, Defendant.

(Supreme Court, New York Special Term,

January, 1899.)

1. Counterclaim — Must be designated as such, to procure judgment on failure to reply.

Where, in an action for goods sold the defendant, among other things, sets up several defenses consisting of new matter and these are not designated as counterclaims, the failure of the plaintiffs to reply does not entitle the defendant to judgment, as in the case of a counterclaim to which no reply has been made.

S. Equity — A demand for unpaid commissions does not authorize an accounting.

An allegation of the defendant, in an action for goods sold, that the plaintiffs engaged him as an agent to sell wines on commission and that certain earned commissions are unpaid, does not entitle him to an accounting in equity, but merely to maintain an action at law to recover the commissions.

Motion for judgment for defendant for lack of a reply to new matter set up in the answer. The action was for the value of goods sold and delivered. The answer denied the material allegations of the complaint, and set up several *“*defenses,” claiming that *78defendant had been plaintiffs’ selling agent for an agreed commission; that he had not been paid all the commissions he had earned; that some of the goods shipped to fill orders obtained by him had been of inferior quality; that he had expended certain moneys for account of plaintiffs, which had not been repaid; and that plaintiffs had prevented him from earning commission by refusing to fill orders which he had obtained. The answer asked for an accounting, and for judgment for whatever might on such accounting be found •to be due. Hone of the defenses were designated in the answer as counterclaims, and upon none of them was any specific sum alleged to be due.

A. Furber, for plaintiffs.

Willoughby B. Dobbs, for defendant.

Scott, J.

The defendant moves for judgment against the plaintiffs for the relief demanded in the answer, and upon the counterclaims set up by the answer, and for an interlocutory judgment directing that an accounting be had between the parties. The complaint is in the usual form for goods sold and delivered to the defendant. The answer puts in issue the material allegations of the complaint, and then set up much new matter by way of defense. To this new matter the plaintiffs have not replied, and the defendant makes this motion upon the theory that his several defenses constitute counterclaims, and that the lack of a reply thereto entitled him to an immediate judgment. An examination of "the answer shows that none of the defenses set up therein are designated as counterclaims, and there is nothing to indicate that the pleader intended •or understood when he drew the answer that he was setting up what is known to our practice as a counterclaim. A clear distinction exists between a defense and a counterclaim, and when a defense is intended as a counterclaim it should be explicitly so stated in the answer so as to advise the plaintiff, and when the defendant defines his answer as a defense, and it is uncertain whether a counterclaim is intended, he is not in a position to insist that he has actually set up a counterclaim, and the answer should be construed and considered as a defense. Equitable Life Ass. Co. v. Cuyler, *75*N. Y. 511. 'It is by this rule that the answer in the present case must be construed, and being so construed, no reply was required on the part of the plaintiffs. All the new matter alleged in the *79answer is deemed as controverted by the plaintiffs. Code Civ. Pro., § 522. ¡Neither is the defendant entitled to an interlocutory decree for an accounting. He alleges that under an agreement between himself and plaintiffs he was engaged as their agent to sell wines for them upon commission, and that certain commissions earned by him under this contract remain due and unpaid. This allegation does not entitle him to an accounting in equity (Smith v. Bodine, 74 N. Y. 30), but merely to an action at law to recover whatever commissions may be due to him. The other defenses consist of allegations that the defendant has suffered damage by reason of the shipment to him of unmerchantable goods, by reason of plaintiffs’ violation of their contract and their refusal to ship him goods, and for moneys disbursed by defendant in the prosecution of plaintiffs’ business and in the attempt to sell their wares. ¡None of these defenses present matters of equitable cognizance, or justify a judgment for an accounting. The motion must be denied, with $10 costs. ,

Motion denied, with $10 costs.