Dolbeer v. Stout — 42 N.Y. St. Rep. 693

Majority

p. 693

Frazier M. Dolbeer, Resp’t, v. John Stout, App’lt.

(New York Superior Court,

General Term,

Filed January 11, 1892.)

Headnote

Attachment—Counterclaim.

On motion to set aside an attachment it was claimed that at the time of the assignment of the claim in suit to plaintiff there was an action pending between defendant and the assignors for damages growing out of the same transaction, and hence there was a counterclaim. Seld, that such claim could not have been set up in an action brought by the assignors, and hence could not be used as a counterclaim herein.

Appeal from an order denying defendant’s motion to vacate an. attachment.

Thomas J. Farrell, for app’lt; Fdward S. Clinch, for resp’t.

This is an appeal from an order denying defendant’s motion to vacate an attachment. The motion is made on affidavits setting forth that at the time the cause of action was assigned to the plaintiff herein another action was pending in the supreme court, in which the defendant herein was plaintiff and the assignors of the plaintiff herein were defendants, for damages growing out of the same transaction from which the cause of action herein arose; and that, therefore, there was a counterclaim existing against the plaintiff’s assignors, at the time of the issuing of the attachment herein, for an amount in excess of the claim in the case at bar, as in the supreme court action the claim was something over $19,000, while in the case at bar the amount claimed is less than $5,000.

The plaintiff, as the assignee of the claim, stands in exactly the same position as his assignors would have stood had they not as

p. 694

signed the claim, but been themselves the plaintiffs in this action. If a counterclaim existed against plaintiff’s assignors, at the time of .the assignment of the claim to plaintiff, the latter took the claim subject to that counterclaim. See § 502 of the Code.

Had the assignors been the plaintiffs in this action, instead of their assignee, could the defendant have set up the demand which constitutes the cause of action in the supreme court case as, a counterclaim in this action? We think not.

Section 495 of the Code especially provides, in subdivision 3, that if it appears on the face of the counterclaim, demanding an affirmative judgment, that there is another action pending between' the same parties for the same cause, the counterclaim would be demurrable. And if that fact should not appear on the face óf the counterclaim, it could, nevertheless, be made available as a defense in the reply. See Ansorge v. Kaiser, 22 Abb. N. C., 306 .

It, therefore, appears that the defendant could not set up a counterclaim in this action, even if the assignors were the plaintiffs, instead of their assignee. And certainly, if the defendant has no counterclaim against the plaintiff’s assignors, he certainly has none against the plaintiff himself, the assignee of the claim.

Since the defendant could not avail himself of his demand against the plaintiff’s assignors as a counterclaim in this action, the order appealed from must be affirmed, with ten dollars costs and disbursements.

Freedman and Me Ad am, JJ., concur.