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Hamilton v. Piza

6 A.D. 598 Court N.Y. App. Div. English

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p. 598
William H. Hamilton, as Assignee for the Benefit of Creditors of Washington Belt and Others, Partners, Composing the Firm of Belt, Butler & Co., Respondent, v. Joshua S. Piza, Appellant.

Headnote

Counterclaim—a demand maturing, after the appointment of an assignee for the benefit of creditors, cannot be set off against the assigned estate,-
In an action "brought by the plaintiff as an assignee for the benefit of creditors, the defendant pleaded, by way of counterclaim, that the assignors of the plaintiff were indebted to him upon two promissory "notes which he had indorsed for their accommodation. The assignment to the plaintiff was made in May, 1895, while the notes did not become due until about a month later.
Held, that the notes did not constitute a counterclaim against the insolvent estate."
p. 599
Appeal by the defendant, Joshua S. Piza, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1896, upon the verdict of a jury rendered by direction of the court, as amended by an order entered in said clerk’s office on the 2Yth day of January, 1896, which judgment dismissed the second cause of action of the defendant’s counterclaim.
Lorenzo TLllo and E- E. Baldwin, for the appellant.
Louie V. Booraem, for the respondent.

The plaintiff sued as an assignee for benefit of creditors. The defendant, admitted his liability upon the cause of action set forth in the complaint. He pleaded by way of counterclaim that the plaintiff’s assignoi’s were indebted to him in the amount of two promissory notes which he had indorsed for the accommodation of such assignors. These notes became due June 5, 1895. The assignment for benefit of creditors was made to the plaintiff May 6, 1895. The defendant paid the notes after their maturity and protest. The court dismissed the cause of action arising on the counterclaim, holding that it could not be set off against the plaintiff’s claim and that no recovery could be had on it in this action.

As the counterclaim is pleaded and in the form in which the matter was presented to the trial court, its ruling was correct. The case is directly within Fera v. Wickham et al. ( 135 N. Y. 223 ).

The judgment is affirmed, with costs.

Present — Van Brunt, P. J., Bumsey, Williams, Patterson and Ingraham, JJ.

Judgment affirmed, with costs.

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