Majority
p. 773HAMILTON v. PIZA. (Supreme Court, Appellate Division, First Department. June 12, 1896.) Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and INGRAHAM, JJ.
Headnote
Set-Off—Claim not Due—Assignment for Benefit of Creditors. A person holding a claim against one who has assigned for benefit of creditors cannot offset'it against a demand of the insolvent estate on him, unless such claim was due at the time of the assignment.Appeal from trial term, New York county. Action by William H. Hamilton, as assignee for the benefit of creditors of Washington Belt, Elliott L. Butler, and Theophilus Jowett, partners composing the firm of Belt, Butler & Co., against Joshua S. Piza. From an order dismissing the counterclaim, defendant appeals.
Affirmed.
L. Ullo, for appellant.
L. V. Booraem, for respondent.
The plaintiff sued as an assignee for benefit ot 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 assignors 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
p. 774
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, 135 N. Y. 223 , 31 N. E. 1028 . The judgment is affirmed, with costs.
Cases cited
- Fera v. Wickham 135 N. Y. 223 p. 774