117 N.Y.S. 949 | N.Y. App. Term. | 1909
A concern doing business under the name of the F. P. Bhumgara Company, between December 22, 1906, and November 14, 1907, sold and delivered goods to the defendants, who were copartners doing business as attorneys at law, which goods amounted, according to plaintiff’s bill of particulars, to the sum of $766.79. This claim was sold to plaintiff on or about April 4, 1908, of which assignment defendants had notice. Between November, 1906, and May, 1908, the defendants had performed professional services for the said company, and their claim therefor amounted to the sum of $1,320. The plaintiff' brought an action in the City Court to recover for the goods sold aforesaid upon his assigned claim. The defendants interposed an answer, admitting the receipt of the goods, but claiming that their value was but $400, and setting up that there was due them from the Bhumgara Company -the sum of $920. Subsequently these defendants brought an action against the Bhumgara Company in . the Municipal Court, setting forth that they had performed services to the amourit as set forth in their answer in the City Court action, and averring that no part of the same had been paid, except the sum of $400, and asked for a judgment of-$500 and costs. The Bhumgara Company appeared in the Municipal Court action and interposed a general denial. In the Municipal Court action the defendants admitted the receipt of goods amounting to $400 and were given a judgment against the Bhumgara Company for the sum of $414. The defendants in the City Court action then obtained leave to and filed and served a supplemental answer, .setting up the .recovery of the judgment in the Municipal Court» and averring that in that court the defendants had obtained a judgment as plaintiffs of $410, after deducting the sum of $400, the value of the goods sold to them by the Bhumgara Company, and claiming that that judgment was res ad judicata in the City Court action, and asked for a dismissal of that action. In the City Court the foregoing facts were shown, and the complaint was thereupon dismissed, and the plaintiff appeals.
It is clear that the defendants could not in this manner deprive the plaintiff of his right to recover. The plaintiff, when the City Court action was brought, was the owner of the claim of the Bhumgara Company against the defendants, and of this fact they had notice. Óf course, the plaintiff took such claim subject to any equities which
Judgment reversed, and new trial ordered, with costs to appellant to abide the event.
