152 N.Y.S. 95 | N.Y. Sup. Ct. | 1915
This action is brought upon two notes given as a part consideration by the defendant for construction and erection of an asphalt plant and machinery. The plaintiff as an assignee of the notes took then subject to all the equities, so that any defense or counterclaim good as against the assignor, the Pioneer Iron Works, would be good against him, at least to the amount of the notes. Siebert v. Dunn, 70 Misc. Rep. 422; Zabriskie v. Central Vermont R. R. Co., 131 N. Y. 72; Phillips v. Taylor, 49 N. Y. Super. Ct. 318. The machinery was constructed under written contract by the plaintiff’s assignor, the Pioneer Iron Works, delivered to the defendant and erected upon his land, but turned out to be of insufficient capacity and not in accordance with the contract. This latter assertion, although disputed, will be assumed for the purposes of this motion. The defendant has kept the asphalt plant and machinery, and, although complaining of defects, never offered to return it, but, on the contrary, continued to use it. The defendant upon ascertaining that the Pioneer Iron Works had not fulfilled its contract and had delivered improper or imperfect machinery was afforded two remedies by law. He could return the property or he could notify the manufacturer to come and get it, removing it at its own cost from the foundations, and could hold the manufacturer for the expense of restoring his property which might be damaged by reason of the removal, or he could rip the machinery out and store it at the manufacturer’s expense. The second remedy would be to keep the machinery and sue for his damages for breach of contract or upon war
Motion denied, with ten dollars costs.