Opinion
June Term, 1896.
Lorenzo Ullo and E.E. Baldwin, for the appellant.
Louis V. Booraem, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, WILLIAMS, PATTERSON and INGRAHAM, JJ.
The plaintiff sued as an assignee for benefit of 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 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 et al. ( 135 N.Y. 223).
The judgment is affirmed, with costs.
Judgment affirmed, with costs.