¶1Both .plaintiff and defendant have filed motions for a new trial. Plaintiff’s motion will be overruled for the reason set forth in our original opinion, Beard v. United States, 67 F.Supp. 963.
¶2Defendant’s motion complains of the dismissal of its counterclaim. It was dismissed for the want of proof. This was erroneous. The case was referred to the commissioner under Rules of the Court of Claims, rule 39(b), 28 U.S.C.A. This rule provides for limiting the hearing before the commissioner “to the issue of whether or not the United States is liable for any portion of the moneys sought to be recovered therein.” Under it, therefore, the issue of the defendant’s right to recover on its counterclaim was not before the commissioner.
¶3Defendant’s motion, for a new trial will be allowed and our order dismissing defendant’s counterclaim will be set aside and the case will be referred to the commissioner for the taking of proof on defendant’s counterclaim. It is so ordered.