142 N.Y.S. 253 | N.Y. App. Div. | 1913
The jury has found that the Eastern Paving Brick Company, the original assignor, broke its contract to sell the defendant whatever vitrified brick he should require for building a sewer for the city of New York, and the court dismissed the counterclaim and directed a verdict for plaintiff for the balance due on bricks delivered to defendant under the contract. The question is whether in this action by the assignee of the amount unpaid the defendant can interpose the defense that the assignor broke the contract, and counterclaim for damages for such breach. It is necessary to notice the dates severally of the first assignment, the breach and when the debt fell due. In July and November, 1900, the company delivered brick, the price whereof, after allowance for defective brick, was $7,171.50, or, less ten per cent reserved payment, $6,454.35, whereon the defendant paid, including freight bills, $3,724.20, leaving a balance of $2,730.15. But- such amount was not payable until the fifteenth day of the month succeeding the engineer’s certificate of the bricks laid, which was August 15, 1902, and interest to the amount of $1,365.08 has been allowed from August 15, 1902, the due date, to December 16, 1910, the time of the verdict. The company assigned the claim to its president on June 20, 1901, and the latter assigned to plaintiff. A receiver of the company was appointed in May, 1902. As early as March, 1902, the company asserted a balance due of
The judgment and order should be affirmed, with costs.
Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred.
Judgment and order affirmed, with costs.