Opinion
June, 1896.
L.B. Bunnell, for appellant.
Lippman Ruck, for respondent.
The complaint alleges that between June 16, 1893, and July 17, 1894, the firm of Benedict Fowler sold and delivered to the defendant merchandise amounting in value to $3,902.40, on which there was a balance of $600 due, and that subsequently, and on December 12, 1894, the firm made a general assignment to the plaintiff for the benefit of creditors, whereby the cause of action became vested in him.
The defendant pleaded certain set-offs, which were allowed by the jury, and about which no serious contention is made on this appeal, and alleged by way of counterclaim that on or about November 20, 1894, she paid in advance to the firm the sum of $462, which amount was received by it and no credit therefor given to her, and that the credit to which she was thus entitled would have more than satisfied the demand in suit. The controversy is as to this alleged counterclaim.
The plaintiff claims that there was no payment, but that the transaction was substantially this: Mr. Benedict, one of the firm, gave Mr. Friedline, the defendant's husband, a note of W.B. Williams, one of the firm's customers, made to the order of Benedict Fowler for $462, and asked Friedline to get the money for it; that Friedline took the note to August Kohn, who upon the guaranty or indorsement of the defendant gave him the amount, which he handed to Mr. Benedict as the proceeds of the discount; that the note was not paid at maturity, and the defendant, as guarantor or indorser, was obliged to take it up; and as the note had not matured at the time of the assignment to the plaintiff, the sum subsequently paid thereon by the defendant was not a proper subject of counterclaim (Code, § 501, subd. 2; John Church Co. v. Clarke, 77 Hun, 467; Myers v. Davis, 22 N.Y. 489), and in respect thereto the defendant became a mere general creditor of the insolvent firm entitled to collect from its assignee whatever dividend may become payable to its creditors.
The defendant, on the other hand, insists that she indorsed the note, obtained the money thereon on the credit of her indorsement from August Kohn, and that at the time she paid the money over to Benedict it was agreed that the amount so paid should then be credited by his firm on the account against her; that the note was really given to her as collateral security for any over-payment made or that might be made to Benedict Fowler, the proceeds, if paid, to be accounted for upon a final settlement of accounts between them. The claim seems odd, yet it may be true.
The case was submitted to the jury, which found the defendant's theory to be correct, that the plaintiff's assignors had been paid in full prior to the assignment, and therefore the assignee had no cause of action.
While the version of the transaction given by the plaintiff's witnesses conforms to business-like methods, and that given by the defendant is out of the usual course, the jury, nevertheless, had the right to believe the defendant and her witnesses; and as the verdict has been approved by the trial judge and General Term of the City Court, we cannot interfere with the finding. Arnstein v. Haulenbeek, 16 Daly, 382; Claflin v. Watch Co., 7 Misc. 668; Gleason v. Thom, 16 id. 30; Kreiser v. Allaire, id. 6.
No error of law having been committed to the plaintiff's prejudice, the judgment must be affirmed, with costs.
DALY, P.J., and BISCHOFF, J., concur.
Judgment affirmed, with costs.