
    George W. Brown, App’lt, v. Samuel Coleman, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    Cowtbbclaim—In action by assignee.
    In an action for rent brought by the assignee of the claim therefor, it is error to charge that the plaintiff stood in the place of his assignor for all damages sustained by the tenant on account of a breach of the assignor’s agreement. A counterclaim for such damages could only be allowed to the extent of plaintiff’s demand.
    
      (Patton v. Royal Baking Powder Co., 114 N. Y., 1; 22 N. Y. State Rep., 178, distinguished.)
    Appeal from judgment of county court in favor of defendant, and from order denying motion for a new trial.
    In June, 1888, George W. Brown, the plaintiff and appellant herein, held by assignment for value a claim for $35 rent against Samuel Coleman, defendant and respondent herein, and sued as assignee to recover that amount. The cause was tried before Justice Engle in the third district court of Brooklyn.
    The defendant in his answer set up as a counterclaim a claim for alleged damages which he held against the plaintiff’s assignor, and secured a judgment against the plaintiff for the sum of $197.85 and costs, amounting in the aggregate to $212.35. This sum was $177.35 in excess of the amount which the plaintiff sought to recover as assignee.
    An appeal being taken to the county court of Kings county on behalf of the plaintiff, upon a trial before the county judge and a jury, a verdict was returned in favor of the defendant for the sum of $142.16 damages, together with costs. This amount also was largely in excess of the amomit of the assigned claim held by the plaintiff and appellant.
    A motion was made to dismiss the counterclaim at the close of the defendant’s case, upon the ground that no contract had been proven, which motion was denied, plaintiff taking an exception.
    A motion was then made that the counterclaim be dismissed, except as to the amount of the plaintiff’s claim. Denied and exception taken.
    At the close of the testimony the foregoing motions to dismiss were renewed by plaintiff and denied, exceptions being taken.
    
      A motion was made upon the minutes for a new trial, which was denied.
    
      J. CuTbert Palmer, for app’lt; James J. Rogers, for resp’t.
   Barnard, P. J.

By § 502 of the Code of Civ. Pro. it is provided that-when an assignee of a claim sues upon it, a demand existing at the time of the assignment may be allowed as a counterclaim to the amount of the plaintiff’s demand.

The case shows that the plaintiff is the assignee of a claim for-rent. The default sets up a counterclaim for a breach of the contract under which the premises were leased.

The court charged that the assignee stood in the place of his-assignor for all damages sustained by the tenant on account of a breach of the landlord’s (assignor’s) agreement. This was erroneous. When the jury allowed a counterclaim to the extent of' the plaintiff’s demand the court should have told the jury to find for the defendant. The fact that the plaintiff’s attorney was theassignee of the claim has no relevancy in this.respect. In the case of Patton, Assignee, v. Royal Baking Powder Company, 114 N. Y., 1; 22 N. Y. State Rep., 178, the claim of the plaintiff, although sxied as assignee, “was his personally and not as assignee.” He assumed to perform the contract assigned to him, which made him liable for damages for a breach of the contract. The judgment of the county court should be reversed and a new trial, granted, with costs to abide event.

Dykman and Pratt, JJ., concur.  