¶1after disposing of a preliminary question relative to the merits.—The counsel for the defendant is mistaken in supposing that there was any counterclaim set up. The action was to recover the wagon, and the only question to be passed upon was,—Who is entitled to the possession, the plaintiff or defendant? The plaintiff’s ownership of the wagon was not denied, but the defendant claimed he had a *205lien upon it for services rendered, and prayed judgment in his favor, and damages, for the wrongful ■ taking of the wagon from him by the plaintiff. If the plaintiff had waived his action for the delivery of the wagon, and brought assumpsit to recover its value, the defendant’s attitude would be different, and what is now a defence merely would then become a counter-claim.
¶2An allegation of new matter not relating to a counter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. (Code, § 168.) The claim set up by the defendant went to the right of possession of the wagon, as suggested, and not to a claim against him upon a money demand on contract, to which counter-claims eo nomine under the Code are confined.
¶3> The application for a new trial, on the ground of surprise, must be denied. Ho surprise was stated at the trial. In fact, the state of the accounts between the parties was the subject of evidence on both sides. Whether the plaintiff owed the defendant the money for repairs, involved the examination of their accounts ; and the point thus presented was one which could reasonably have been anticipated. We cannot say, that want of skill, care, or attention to this branch of the case, can be justly imputed, or that injustice has been done. In the absence of these elements, a new trial should not be granted. (1 Grah. & W., on New Trials, 168.),
¶4Judgment affirmed, with costs.
¶5 Present, Ingraham, F. J., and Brady, J.