
    Barnett House, Trading as B. House & Co., Respondent, v. Henry Brilliant, Appellant.
    (Supreme Court, Appellate Term,
    February, 1905.)
    Estoppel — Silent when duty to speak.
    Where the evidence justifies a finding that before any of the work, labor and services, sued for by plaintiff, were rendered, he and defendant had a conversation concerning certain orders which the latter contemplated giving to plaintiff’s assignor for which defendant undertook to be personally liable, and that plaintiff at that time informed defendant that he was to finance the work for his assignor, having an agreement for the assignment of her claims, defendant is estopped from setting up as a counterclaim, a debt of the assignor to him.
    Appeal by the defendant from a judgment, rendered in favor of the plaintiff in the Municipal Court of the city of Hew York, sixth district, borough of Manhattan.
    Maurice Meyer, for appellant.
    Howard Campbell, Jr., for respondent.
   Scott, J.

The plaintiff sued as assignee of one Jacobs for work, labor and services. The answer put in issue only the assignment of the claim, and that-was sufficiently proven. The defendant undertook to set off an indebtedness to himself from the assignor, and that was admitted. The only question in the case is whether the defendant had estopped himself from setting up his counterclaim as against this assignee defendant. The indebtedness of plaintiff’s assignor to defendant arose on March 1, 1904. The assignments to plaintiff were executed after that date. There is evidence however from which the justice was justified in finding that in the latter part of March, and before any of the work, labor and services were rendered, plaintiff and defendant had a conversation respecting certain orders which defendant contemplated giving the assignor Jacobs; that defendant undertook to be personally liable for and to pay the amount of such orders; and that plaintiff at that time informed defendant that he (plaintiff) was to finance the work for Jacobs, and that he had an agreement with her by which she was to assign her claims to him and he was to collect them. Nothing whatever was said by defendant at this, or any time, to plaintiff as to any indebtedness on the part of Jacobs, the assignor, to defendant. In our opinion, these facts established an estoppel against defendant to the set-off, as against plaintiff, of the indebtedness of Jacobs. The defendant must have understood that plaintiff proposed to finance the work by Jacobs, in reliance upon her assignment of the bills therefor, so that he could collect them, and he must be held to have known, or at least have strong reason to believe, that plaintiff would not have advanced the money to enable the work to be done, if he had been informed that Jacobs already owed money to defendant, and that defendant would undertake to set off the indebtedness against any amount which should become due to Jacobs on the orders he was about to give. Under the circumstances the defendant had an opportunity, and it was his duty to inform plaintiff, before the orders for the work were accepted, of the existing indebtedness on the part of Jacobs, and having maintained silence he is estopped now from setting up that indebtedness against this plaintiff. Viele v. Judson, 82 N. Y. 32.

Giegerich and McCall, JJ., concur.

Judgment affirmed, with costs.  