Majority
p. 1011Iselin-Jefferson Financial Company, Inc., Plaintiff, v. Sol Orlinsky, Defendant. Supreme Court, Special Term, New York County, June 29, 1970.
Otterbourg, Steindler, Houston & Rosen (Arthur A. Greenfield of counsel), for plaintiff. Ruben Schwartz for defendant.
Motion by the plaintiff factor for summary judgment on its first cause of action in this action against the guarantor of the debts of a corporation to a client of plaintiff, arising out of sales by plaintiff’s client to that corporation is granted; partial summary judgment is granted on the second cause for attorney’s fees as to liability and the issue of amount set down for a hearing. The execution and delivery of the guarantee are admitted by defendant who asserts
p. 1012
as a defense the existence of a setoff against plaintiff’s factored 'client arising out of a dispute as to quality of goods sold. But the guarantee specifically provides that it shall he effective without deduction or setoff and the efficacy of such a provision is long established. (Madison Ind. Corp. v. Elisberg, 152 Misc. 167 ; see, also, Uniform Commercial Code, § 9-318.) The claimed agreement of compromise between defendant’s corporation and plaintiff’s client did not affect the guarantee and could not bind plaintiff according to the guarantee’s terms absent consent. No proof has been adduced of plaintiff’s consent to the setoff.
Cases cited
- Madison Industrial Corp. v. Elisberg 152 Misc. 167 p. 1012