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Newton v. Lee

23 N.Y.S. 536 Court N.Y. Gen. Term Decision date 1893-05-08 English

Delivered by BARNARD, P. J.

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p. 536
(69 Hun, 90.)
NEWTON v. LEE et al.
(Supreme Court, General Term, Second Department.
May 8, 1893.)

Headnote

Set-Off and Counterclaim—Action by Assignee—Claim against Assignor.
In an action on a bill ior tlie price of goods alleged to have been sold by N., and assigned to plaintiff, defendants denied the sale to them, and set up, as a separate defense, that they were sureties for the payment of the accounts of a company with whom N. contracted to furnish certain goods; that N. failed to furnish the goods as contracted, to the damage of the company; and they asked to recoup and counterclaim this damage against plaintiff’s claim. Held, that the answer stated a dear case where a counterclaim existing against the assignor at the time of the assignment was available, under Code Civil Proc. § 502, subd. 1, as far as necessary to destroy the demand of the assignee
Appeal from special term, Queens county.
Action by Franklin D. Newton against Gertrude E. Lee and others for the price of goods sold. A demurrer to a part of the answer was overruled, and plaintiff appeals.
Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Stickney, Spencer & Ordway, (Nelson S. Spencer, of counsel,) for appellant.
Knevals & Perry, (James W. Perry, of counsel,) for respondent.

The complaint states that certain articles of personal property were sold and delivered by the Naugatuck Malleable Iron Company to the defendants; that the bill for the value of the same is unpaid, and that the company has assigned the claim to the plaintiff. The defendants deny the sale, the value claimed, and the assignment to the plaintiff. The answer thus proceeds to make a distinct and separate defense, to the effect and purport that the sale was made to the American Bit-Brace Company, and not to the defendants; that this bit-brace company made a contract with the Naugatuck Malleable Iron Company to furnish castings from patterns furnished by the American Bit-Brace Company; that the Naugatuck Company, on the 13th of July, 1892, made an order for castings, but failed to furnish the castings, and thereby caused great loss to the American Bit-Brace Company; and the defendants ask to recoup, set off, and counterclaim this damage against the plaintiff’s claim. The distinct and separate defense further states that the defendants were only sureties for the payment of the account of the American Bit-Brace Company to the Naugatuck Company. The separate answer states a clear case where the counterclaim existing against the Naugatuck Company at the time of the assignment should be available to destroy the claim assigned to the plaintiff, as far as it was to go, or, as stated in the demand for judgment, as far “as shall be necessary to extinguish the plaintiff’s demand.” The demurrer was properly overruled. Code, § 502, subd. 1; Baker v. Hotchkiss, 97 N. Y. 395 . The plaintiff took the contract with all defenses against the assignee for the breach of the contract out of which the claim arose, and the defense is good so far as the entire extinguishment of the

p. 537
assigned claim oí the proof of damages is sufficient. Ho personal claim is made against the plaintiff. Bates v. Rosecrans, 37 N. Y. 409 . Judgment affirmed, with costs.

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