¶1(dissenting.) I find myself unable to concur in the opinion of the presiding justice in this case. The answer set up, distinctly and unequivocally, a large counter-claim against the old firm of Jay Cooke, Mc-Culloch & Co., composed of ten or a dozen persons, three of whom only are among the plaintiffs. It was incumbent upon the plaintiffs to reply to this counter-claim, which they accordingly did, but they did not, in such reply, allege that there was a defect of parties, in that all of the persons against whom the counter-claim was made were not before the court, nor any other reply in the nature of a plea in abatement, notwithstanding this, however, the referee has overruled or dismissed the counter-claim upon the ground that all of the old firm of Jay Cooke, McCulloch & Co. were not among the plaintiffs. In my judgment, this conclusion is clearly erroneous. The particular purpose of the Code of Civil Procedure in respect to counter-claims, and the issue to be framed thereon, is adjusted as nearly as possible to the rights and duties of a defendant in pleading any defense to the plaintiff’s original cause of action. If the defendant set up a cause of action against the plaintiff by way of counter-claim, and the plaintiff does not reply thereto by interposing a plea in abatement,—that is to say, that the defendant ought not to have or maintain his counter-claim because the proper parties are not before the court,—the plaintiff must be governed by the same rules precisely as govern *205the defendant who, under like circumstances, fails to interpose this objection to a right of recovery. As the objection that the defendants have copartners who ought to be called upon, to respond jointly with them is a defense which must be specially alleged, so tlie corresponding objection to a defense to a counter-claim must likewise be alleged, which was not done in this case.
¶2The judgment should be reversed, and a new trial granted, costs to abide the event.