Ordered that the order is affirmed, with costs.
While it can be argued that the defendants in this partition action did put title in issue in their counterclaim (see, RPAPL 907), "[t]he character of a defense and counterclaim is controlled by the substance of the facts alleged, and not solely by its prayer for relief (Wainwright & Page v Burr & McAuley, 272 N.Y. 130; Auerbach v Chase Nat. Bank of City of N.Y., 251 App Div 543)" (Seneca...
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