150 N.Y.S. 660 | N.Y. Sup. Ct. | 1914
The action was brought to recover the sum of $498.78 and interest from June 10, 1914, by the
In order to sustain the first counterclaim and to show that the lien was accepted by the supply company in full satisfaction of a preceding indebtedness, the defendant must establish an agreement to that effect (Hall v. Stevens, 116 N. Y. 201, 206) and without such proof the mere acceptance of the assignment did not discharge the original debt. Friberg v. Block, 65 App. Div. 541, 542. As to-this counterclaim the defendant testified that one Vogel, then the president of the supply company, “ accepted the assignment.” Vogel testified, when called by the defendant as his own witness, that ‘‘ Mr. Strompf filed me an assignment of the lien to get some more credit. I accepted it and told him that if it was paid his credit was good.” The books of the supply eompány showed, however, that
As to the second counterclaim, there can be little doubt but that Vogel intended to allow the defendant’s claim for work, etc., to apply upon his indebtedness to the supply company, as after the defendant performed the work Vogel gave him a receipt as follows:
" May 18, 1914.
“ Received from O. A. Strompf two hundred and twenty ($220.00)
Yorkville Plumbers Supply Depot,
Per T. Vogel, Pres.”
The evidence shows, however, that Vogel’s wife owned some real estate in Mt. Vernon, that Vogel had a power of attorney from his wife to transact her business, that defendant went to Mt. Vernon at Vogel’s request, and with Vogel and his wife made an agreement to and did work upon her premises, said work amounting to said sum of $220, and that thereafter Vogel gave defendant the receipt above quoted.
This attempt on the part of Vogel to pay the indebtedness of himself or his wife, and bind the corporation of which he was president, was without the slightest legal
Bijur and Page, JJ., concur.
Judgment reversed and new trial ordered with costs to appellant to abide event.