
    Arthur M. Dodge et al., Resp’ts, v. Henry A. Ockerhausen, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Bills and notes — Bona fide indorsees — Counterclaim.
    Defendant gave a note to K. & Co. in payment for labor, which was indorsed by them to plaintiffs, and when the same was due defendant gave them new notes therefor. In an action thereon, defendant set up want of consideration and counterclaims for breach of contract by K. & Co., and for a failure of plaintiffs to deliver lumber to K. & Co. in time to enable them to complete. Held, that there was a good consideration for the notes, and that the counterclaim, if any existed, did not attach to the note, and it passed to the plaintiffs free from any set-off.
    Appeal from judgment in favor of plaintiffs, entered on verdict directed by the court.
    Action upon two promissory notes. Defense, want of consideration, and a counterclaim for breach of contract on the part of Keely & Go. in failing to complete the building of a pavilion at the time specified, and that Keely & Co. purchased the lumber therefor from plaintiffs, who did not deliver the same in time to enable them to complete according to contract
    On or about September 18, 1890, defendant gave to Dennis Keely & Son his promissory note for $1,019. It was given for labor rendered by Keely & Son to defendant. At the time it was given defendant owed Keely & Son that amount of money, in payment of which this note was taken.
    Keely & Son owed this amount to plaintiffs for lumber used in defendant’s buildings, and indorsed this note over to them in payment of said indebtedness. When this $1,019 note became due, three months thereafter in December, defendant paid said note by two notes, for $500 and $519, respectively, and gave them to plaintiffs. They were given in place of the said $1,019 note, which was to the order of Dennis Keely & Son. These two notes were given direct to the order of plaintiffs, Dodge & Co. When these last two notes, to the order of Dodge & Co., became due, three months later, in March, defendant gave the two notes in suit, payable to Dodge & Co. direct The defendant paid the interest or discount on these notes to the order of plaintiffs.
    
      Philo P. Safford, for app’lt; Randolph Parmly, for resp’ts.
   Pratt, J.

The note of $1,019, in renewal of which the notes in suit were given, was executed for a good consideration. If, at the time it was made, any counterclaim existed against the payee in favor of the maker, it did not attach to the note. That passed to the indorsees free from any set off.

If Keely & Son had a cause of action against plaintiffs for delay in delivering the lumber, they have it yet. There is no evidence that it has been transferred by them to this defendant

The court below correctly held that there was no question for the jury.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  