Groof v. Bliss — 75 N.Y. St. Rep. 1487

Majority

p. 1487

Groof, Respondent, v. Bliss, Appellant.

(City Court of New York, General Term.

October 30, 1896.)

Headnote

Action by Frederick G. Groof, as general assignee, etc., of Henry W. Benedict and Robert A. Fowler against Clara E. Bliss. Clin, Rives & Montgomery, for appellant. A. R. Bunnell, for respondent.

—This is an action brought to recover for goods sold and delivered. The defendant’s contention upon this appeal is that certain notes which she gave to the plaintiff assignor prior to the assignment to the plaintiffs for the benefit of said assignor’s creditors, and which were given to said assignors for their accommodation, should be considered as a payment of the claim in question. The trial justice refused to concur in defendant’s view, except as to one of the said notes, and hence this appeal. It appears that all of said notes except the one allowed by the trial justice as a proper subject of counterclaim became due and were paid by the defendant after the assignment. Under such circumstances, it was proper for the trial justice to rule that said notes were not proper counterclaims herein. Defendant, as to such notes, occupied the same position as the

p. 1488

other creditors of the plaintiff’s assignor. The notes, as before stated, were not due at the time of the making of the assignment, and therefore they constituted no claim upon the estate of the assignor due when the assignment was made (see Fera v. Wickham, 135 N. Y. 328 ), and cannot-be presented in this action as a counterclaim. Finding no error herein, the judgment must be affirmed. All concur.