
    Bernhard Stirn, App’lt, v. Hoffman House Company, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed February 8, 1894.)
    
    Judgment—Counterclaim: against assignor.
    In an action on an assigned claim, no affirmative judgment can he had on a counterclaim against the assignor.
    Appeal from a judgment in favor of the defendant.
    
      Qliarles Strauss, for app’lt, John Delahunty, for resp’t.
   Fitzsimons, J.

The plaintiff’s assignor, L. Somborn and Company, were engaged in the business of selling a brand of champagne known as “Grand Seb.” They employed one Edward K. Somborn to sell said wine as a general salesman. In that capacity he sold to defendant wines and agreed to allow it a discount of 10 per cent, upon the value of wines purchased. The amount of such discounts, it appears was $320.13. These facts were testified to by the salesman and defendant’s president, and were uncontradicted, and for that sum defendant set up a counterclaim- This action was brought to recover the value of wines sold $232.00 with interest. Judgment was rendered in defendant’s favor upon said counterclaim, over and above the amount claimed by plaintiff for $67.31 and from said judgment this appeal is taken. The undisturbed testimony shows that Edward K. Somborn was the general salesman of plaintiffs’ assignor. As such, his agreement to allow a discount and fixing prices was binding and in law was the act of the principal. The trial justice was justified, in view of the undisputed evidence of defendant to direct a verdict in defendant’s favor upon the counterclaim up to the amount claimed in the complaint but not beyond it. It was error therefore for him to render an affirmative judgment in defendant’s favor for $67.31 because plaintiff is an assignee. The judgment must therefore be modified by reducing it $67.31 and as so modified is affirmed with costs.

Ehrlich, J. concurs.  