‘The opinion of the court was delivered by
Kingman, C. J.:
Parker & Tisdale commenced an action .against Charles W. Wiggins, Joseph M. Wiggins, and John J. Wiggins, doing business under the name of C. W. Wiggins & Bros., on an account for money had and received as agents of the plaintiffs. No service is shown on any of the defendants. Joseph M. Wiggins alone answered, setting up, first, .a general denial; second, payment; third, a defense that is called a counterclaim, and which appears by the evidence to have been such in favor of “C. W. Wiggins & Bros.” and ngainst the plaintiffs. This counterclaim is in its terms in *424the name' of the “ defendants,” all the time throughout using the plural number to indicate the parties setting it up. When the case was called for trial the plaintiffs, failing to get a continuance, dismissed their petition. The court at the instance of defendants retained the counterclaim for trial. Upon the trial the plaintiffs objected to the reception of evidence because the counterclaim did not state facts sufficient to constitute a cause of action; but wherein it is defective is not suggested in argument, nor is it apparent to the court. Verdict and judgment were rendered in favor of the defendants. After the evidence was closed the plaintiffs asked the following instruction, which was refused:
“If the jury find from the evidence that the defendant Joseph M. Wiggins had associated with him as partners in the hotel business Charles W. Wiggins and John J. Wiggins, at the time the board was furnished arid services rendered charged for in the answer and counterclaim filed herein by Joseph M. Wiggins, and that they were interested in the proceeds resulting from the same, and do not find from the testimony that there had been an assignment or sale of the interest of the said Charles W. and John J. Wiggins therein to the said defendant Joseph M. Wiggins, they will then find under the issues joined herein in fevor of the plaintiffs, Parker & Tisdale.”
The refusal to give this instruction is the only error presented in the brief of plaintiffs in error. The third paragraph of the answer setting up the counterclaim seems to us to show upon its face that the claim therein set up is one in favor of the Wiggins Bros. The answer is by carelessness or design very awkwardly worded. It purports by its commencement to be the answer of one defendant, yet it uses the word defendants throughout, with its corresponding plural verb, and concludes in these words, “and he asks judgment for the balance in their favor, with costs.” If we are right in thinking that the counterclaim shows a demand in favor of all the defendants, and it was plead only by one, then the defect of parties appeared upon the face of the answer, and could be taken advantage of by demurrer, and if not so taken advantage of, the defect, under the code, is waived. Code, §§89 and 91. Even if we err in *425our construction of the pleading, the same conclusion is reached, for the defect in that view should have been taken by the reply, or it is waived. In this case the reply was filed after the petition was dismissed, so that there was ample opportunity to have raised the question by the reply, had it been desirable. Instead of availing themselves of a bar to the action on the counterclaim, provided by the code, the plaintiffs preferred to risk a hearing upon the merits, and trust to an instruction to save their case. But the court properly held that that point had been waived by neglecting to interpose it as a defense at the proper time, and in the manner pointed out by the code. Such a defense not being upon the merits, is called dilatory; and its indulgence, except at the first available opportunity, is not favored in law. This point has been decided in Zabriskie v. Smith, 13 N. Y., 322, and in Merritt v.Walsh, 32 N. Y., 689, so far as the samehs applicable to a petition; and we think the same rules are applicable to a counterclaim set up by way of answer, that govern a demurrer to a petition. The code on this point may seem somewhat uncertain (§102,) as the only ground of demurrer given by the code for an answer, is that it is insufficient. But it is probable that the legislature intended that the same rules should be resorted to in determining its sufficiency, that is given for a petition, so far as such rules apply. It is certain that they apply to an answer that sets up a counterclaim, for that in its very nature bears a close resemblance to a cross action, requiring the same substantial allegations as a petition, (Vassear v. Livingston, 13 N. Y., 248, affirming case reported in 4 Duer, 285,) and is necessarily tested by the same rules. Judgment affirmed.
All the Justices concurring. ■