
    FRAZIER M. DOLBEER, Respondent v. JOHN STOUT, Appellant.
    Attachment, motion to vacate, etc.
    
    This was an appeal from an order denying a motion to vacate an attachment made in the same action reported previously (antep. 269). The motion was made subsequently to the other and before another judge, and upon different grounds, and may be named motion No 2. The facts and points in the case appear in full from the points of the counsel and the opinion of the court.
    
      Held, that the defendant could not have set up a counter-claim in this action even if the assignors were the plaintiffs instead of their assignee, and defendant having no counter-claim against plaintiff’s assignors, can have none against the plaintiff, the assignee of the claim.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    Appeal from an order denying defendant’s motion to vacate an attachment.
    
      Thomas J. Farrell for appellant, argued :—
    I. One of the points made by the respondent to defeat the appellant’s motion was that the denial of the first motion of appellant to vacate the attachment on the papers was a bar to the making of the second motion-It is a well settled rule of practice that the denial of a motion to vacate an attachment, where such motion is based solely upon the papers on which the attachment was granted, does not prejudice the making of a subsequent motion founded on affidavits disproving some essential allegation contained in the affidavit upon which the attachment was issued. Rumsey's Practice, vol. 1, page 556; Thalheimer v. Hays, 42 Hun, 93. Upon a motion made on affidavits to vacate an attachment, every allegation on which the attachment was granted may be disproved, and whenever any essential fact is successfully controverted the attachment, will be vacated. Code Civil Procedure, § 683; Boscher v Roullier, 4 Abb., 396; Van Allen v. Sampson, 5 Weekly Dig., 288. The appellant’s first motion was based solely upon the affidavit upon which the attachment was granted, the appellant claiming that such affidavit was insufficient to give the court jurisdiction. The second motion was made on affidavits disproving a material and essential allegation contained in the affidavit upon which the warrant was granted, viz., the allegation that the amount sued for was due respondent over and above all counter-claims.
    II. The appellant’s claim for damages in the action against Linde & Co. in the Supreme Court constituted a counter-claim against the claim of Linde & Co., for storage. The affidavit submitted by the appellant sets forth fully and at large all the facts constituting this counter-claim. Upon the motion to vacate the attachment the appellant by his affidavit presented these facts to the court and was entitled to have the same met by the respondent. The affidavits submitted by the respondent in opposition to the motion to vacate the attachment wholly failed to deny, controvert or explain any of the allegations above set forth, except the allegation that the assignment to the respondent was a device, etc. It is a fact that is not disputed that the respondent’s claim for storage and the appellant’s claim for damages arise out of the same agreement and transaction. Therefore the appellant’s claim for damages constitutes a counter-claim against Linde & Co. Code Civil Procedure, 501. Suppose Linde & Co., instead of making an assignment to respondent, had themselves brought action against the appellant to recover the amount of the storage. In such an action it would have heen clearly the right of the appellant to set up his claim for damages as a counter-claim.
    III. The assignment of the claim in suit by Linde & Co. to the respondent could not deprive the appellant of his right to counter-claim his damages against the claim for storage. This assignment passed to the assignee no greater rights than were possessed by the assignor. The respondent under the assignment acquired the rights neither more or less of the assignor, and stands in the exact position of the assignor, as the assignor could transfer no better right than that of which he is possessed. Bush v. Lathrop, 22 N. Y., 535; Ely v. McNight, 30 How., 97; Littlefield v. Albany County Bank, 97 N. Y., 581; Martin v. Kunzmuller, 10 Bosw., 26; Myers v. Davis, 22 N. Y., 489. It is the general and. well established rule that an assignee of a demand or right in action, negotiable instruments only excepted, holds subject to all equities, burdens and offsets which existed against the assignor at the time of the assignment. Blydenburgh v. Thayer, 1 Abb. Ct. of App., 156. The Code of Civil Procedure, section 1909, provides as follows: ei Where a claim or demand can be transferred the transfer thereof passes an interest which the transferee may enforce by an action or special proceeding, or interpose as a defence or counter-claim in his own name, as the transferor might have done. Subject to any defence or counter-claim existing against the transferor before notice of the transfer or against the transferee.
    
      
      Edward S. Clinch, for respondent, argued:—
    The defendant moved, on affidavits, for an order that the warrant be vacated, on the ground that the plaintiff is the assignee of the cause of action, and that, as against his assignors, the defendant had a counter-claim. The motion was heard by Mr. Judge Dugbo and denied, and from the order thereupon entered the defendant also appeals. On the argument of the motion the defendant’s counsel conceded, and it is not disputed by the defendant’s papers : First—That the defendant owes the storage charges which constitute the cause of action. Second—That the plaintiff is the assignee of that cause of action. Third—That the defendant has no claim against the plaintiff. Defendant’s counsel urged that the granting of an attachment was discretionary with the court, and asked, as a matter of discretion, that it be vacated. The plaintiff contends that, Avhen affidavits are presented which show facts which entitle the plaintiff to the warrant and the facts are established to the satisfaction of the judge granting it {Code, § 636), the warrant must issue. If there is any question as to the facts, the court, in its discretion, may refuse to grant the warrant. Assuming that the warrant is discretionary that discretion was exercised by Judge McAdam: (1.) When he granted the warrant. (2.) When he denied the motion to vacate it. The sufficiency of the affidavit upon Avhich the warrant was granted, has been passed upon by Judge Mo Adam, and the order made by him has been appealed from by defendant, and the argument of plaintiff’s counsel, in support of it, Avill not be here repeated, but the court is respectfully referred to the brief submitted on that appeal. The Code, section 636, requires an affidavit on the part of the plaintiff, that he is entitled to recover a sum over and above all counterclaims known to him. A counter-claim is a cause of action upon which the defendant is entitled to an affirmative judgment against the plaintiff, should he succeed in establishing it. The defendant’s counsel necessarily concedes that the defendant has no counter-claim against the plaintiff:, but claims that he has a set-off: to the cause of action, but no reference to the existence of a set-off is required to be made. The decision of the Supreme Court in Crowns v. Vail, 51 Hun, 204; 21 State Rep., 208, and cited by Judge McAdam, is conclusive of the questions raised by the defendant. In that case, the general term of the Supreme Court held that a plaintiff, who is an assignee, “ is not required to swear to counterclaims existing against his assignors. The requirement is, that the affidavit must show that the plaintiff is entitled to recover the sum stated therein, over and above all counter-claims known to him, and not known to him or his assignors.” 21 State Rep., 211.
   By the Court.—Gildersleeve, J.

This is an appeal from an order denying defendant’s motion to vacate an attachment. The motion is made on affidavits, setting forth that at the time the cause of action was assigned to the plaintiff herein, another action was pending in the Supreme Court, in which the defendant herein was plaintiff and the assignors of the plaintiff herein were defendants, for damages growing out of the same transaction from which the cause of action herein arose; and that, therefore, there was a counter-claim existing against the plaintiff’s assignors, at the time of the issuing of the attachment herein, for an amount in excess of the claim in the case at bar, as in the Supreme Court action the claim was something over nineteen thousand dollars, while in the case at bar the amount claimed is less than five thousand dollars.

The plaintiff, as the assignee of the claim, stands in exactly the same position as his assignors would have stood, had they not assigned the claim, but been themselves the plaintiffs in this action. If a counter-claim existed against plaintiff’s assignors, at the time of the assignment of the claim to plaintiff, the latter took the claim subject to that counter-claim (see section 502 of the Code).

Had the assignors been the plaintiffs in this action, instead of their assignee, could the defendant have set up the demand, which constitutes the cause of action in the Supreme Court case, as a counter-claim in this action ? We think not.

Section 495 of the Code especially provides, in subdivision 3, that if it appears on the face of the counter-claim, demanding an affirmative judgment, that there is another action pending between the same parties for the same cause, the counter-claim would be demurrable. And if that fact should not appear on the face of the counter-claim, it could, nevertheless, be made available as a defence in the reply. See Ansorge v. Kaiser, 22 Abb. N. C., 306.

It, therefore, appears that the defendant could not set up a counter-claim in this action, even if the assignors were the plaintiffs, instead of their assignee. And certainly, if the defendant has no counter-claim against the plaintiff’s assignors, he certainly has none against the plaintiff himself, the assignee of the claim.

Since the defendant could not avail himself of his demand against the plaintiff’s assignors as a counter-claim in this action, the order appealed from must be affirmed, with ten dollars costs, and disbursements.

Freedman, P. J., and McAdam, J., concurred.  