27 Barb. 79 | N.Y. Sup. Ct. | 1858
It is provided, by the statute authorizing setoffs, (2 R. S. 354, § 18, sub. 9,) that in an action founded upon a negotiable promissory note, or bill of exchange, which has been assigned to the plaintiff after it became due, a set-off to the amount of the plaintiff’s debt may be made, of a demand existing against any person or persons who shall have assigned or transferred such note or bill after it became due, if the demand be such as might have been set off against the assignor while the note or bill belonged to him.
The code has not extended the right of set-off, or other grounds of defense, in such action. (See § 112 of the Code.)
The note on which this action is brought was payable, “ with use,” to Zalmon Euscoe or bearer, and was negotiated by him, for value, within three days after its date, to Daniel McOoun, by whom it was transferred to the plaintiff, who paid him the full amount thereof. Although no specific time was
Lott, Justice.]
Bor are the matters setup available as a counter-claim: they did not constitute a cause of action against the plaintiff on the record. This is necessary to support a counter-claim, • under section 150 of the code. (See Spencer v. Babcock, 22 Barb. 326.)
Judgment must therefore be entered in favor of the plaintiff, for $95.24, with interest from 21st April, 1858, and costs.