Horowitz v. Brodowsky

Giegerich, J. It is undisputed that the plaintiff’s assignor, one Samuel Rubenstein, sold and delivered to the defendants, a pair of diamond earrings, at the agreed price of $199. The defendants having failed to pay for the goods, the plaintiff,, to whom the claim was subsequently assigned, commenced this action. The defendants, among other things, pleaded a set-off. The plaintiff, at the trial, admitted the correctness of the items-of the bill of particulars touching his claim for the sum of $153.33, so pleaded as a set-off for furniture sold and delivered by the defendants to the plaintiff’s assignor, and further admitted that the goods therein mentioned were sold by the defendants to Ruben732 stein. He denied, however, the payment of the sum of $50 claimed to have been- paid by the defendants, on account of said articles of jewelry. The trial justice gave judgment in favor of the defendants for $4.33 damages and $10 costs, and the plaintiff has brought on this appeal. The defendants concede that the justice erred in awarding them any damages whatsoever, and have served notice upon the other side that they will consent to the remission of said sum of $4.33 from the judgment and its reduction to $10. The evidence shows that a note was given by the plaintiff’s assignor to the defendants for $100', payable on Hay 25, 1898, which was credited to* him on account of the purchase price of the furniture, and the amount of this note, although it had not yet matured, was allowed by the justice by way of set-off. It is a-familiar rule that a defendant can only offset such claims against the plaintiff’s assignor as matured before the assignment, and which belonged to him in good faith without knowledge of the assignment, and that any defense available to plaintiff’s assignor against the set-off is available to the plaintiff. Myers v. Davis, 22 N. Y. 489; Martin v. Kunzmuller, 37 id. 398; Norton v. McCarthy, 10 Misc. Rep. 222. In the case at bar the trial took place and the judgment was rendered prior to the maturity of the noté, in question. The right of the defendants to sue thereon being then suspended (Martens-Turner Co. v. Mackintosh, 17 App. Div. 419), it is manifest that they should not have been credited with the amount thereof, as. they were, and that to that extent, at least, the judgment was erroneous. ■ It follows from these views that the judgment shotdd be reversed and a new trial ordered, with costs to the appellant to abide thé event. Beekman, P. J., and Gildersleeve, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.