Joffe-Mayer Co. v. Raden

SEABURY, J. This action is brought upon an undertaking given by the defendants. The undertaking was given in an action by the Embroiderers’ Supply Company against this plaintiff. The plaintiff in that action obtained an attachment against the property of this plaintiff, and the attachment was subsequently vacated. The defendants pleaded a counterclaim for $196.19, which was the amount of the judgment which the Embroiderers’ Supply Company obtained against this plaintiff. The counterclaim was admitted, and the court below directed a verdict in favor of the defendant for that amount. [1] Upon this appeal the appellant contends that the court erred in excluding proof of the loss of profits on orders on hand, and in excluding proof of the damages resulting from the failure of the marshal to return the goods seized under the attachment. The correctness of these rulings is not properly before us, in view of the concession, made at the trial, that the plaintiff had made a general assignment for the benefit of its creditors after the attachment had been issued and the levy made under it. Such an assignment transferred to the assignee all the rights which the plaintiff possessed under the undertaking upon which this action is brought. McKee v. Judd, 12 N. Y. 622, 64 Am. Dec. 515; Walsh v. Woarms, 109 App. Div. 166, 95 N. Y. Supp. 824; Alexander v. City of Gloversville, 110 App. Div. 791, 97 N. Y. Supp. 198. The defendants moved at the trial to dismiss the complaint upon this ground, but the motion was denied. The plaintiff, having assigned the claim upon which it now sues, cannot maintain an action upon it. The complaint should have been dismissed at the trial. [2] It follows that the judgment rendered in favor of the defendants upon this counterclaim should be affirmed, with costs. All concur.