Disposition of this motion to dismiss counterclaim has been held in abeyance until the filing of the answer.

It was stated on the argument, by counsel for the defendant Elias, that the gravamen of the counterclaim is malicious prosecution. The counterclaim itself is predicated upon the institution of this action and the proceedings therein. The cases chiefly cited, and relied upon in op*95position to the motion, arise out of actions based upon antecedent litigation which successfully terminated in favor of the person who sued for libel, slander or malicious prosecution.

It would be anomalous if, upon the trial of this action, the jury were also called upon to determine the issues raised by plaintiff’s answer to the counterclaim, and it would certainly be confusing and, perhaps, confounding to the jury.

Such a precedent would invite a practice hitherto unknown, so far as this court is aware, that would he burdensome and, it is felt, impracticable and improper.

It is, therefore, unnecessary to determine at this time whether certain allegations of the complaint are privileged and whether the counterclaim omits allegations essential to state a legal claim, as contended by the parties, respectively. Motion granted. Submit order.