
    William J. Tierney, Respondent, v. The Peerless Shoe Company, Appellant.
    Appeal from a judgment entered on a verdict directed by the court.
    Thompson & Maloney (J. Campbell Thompson, of counsel), for appellant.
    John T. Fenlon,. for respondent.
   Per Curiam.

The complaint alleges a cause of action on a promissory note of the tenor following:

"376. New York, October 26, 1898.

"Seven months after date, we promise to pay to the order of Sheridan S. Norton, as Assignee, Three hundred and seventy-five 00/100 Dollars, at our office, 430 West 14th Street, New York City, with interest.

"Value received with current rate of exchange.

“ Due May 26, 1899. "Peerless Shoe Company,

S. A. Byers, Treas.”

The answer sets up a counterclaim of $947.87 for rent, owing by Sheridan S. Norton, as assignee, of premises No. 430 West Fourteenth street, New York city, owned by Henry Mienken, and an assignment of said claim to the defendant. The assignee was clearly liable, for the rent during the time the assigned business was carried on at No. 430 West Fourteenth street, to the owner, Mienken, and the defense, having an assignment of that claim, could have it set off against the note. Even if the counterclaim, instead of being for rent, had been for use and occupation, it would have been a good counterclaim, and we think that the trial judge should have allowed the amendment of the answer according to the proofs.

But it was error for the trial judge to take the case from the jury, as the testimony of the assignee Norton, he being the real party in interest as payee and indorsee of the note, must be passed upon by the jury. Dean v. Metropolitan El. R. Co., 119 N. Y. 540; Goldsmith v. Coverly, 75 Hun, 48.

Judgment appealed from reversed, and a new trial granted, with costs to the appellant to abide the event.

Present: Conlan, McCarthy and Scotchman, JJ.

Judgment reversed and new trial granted, with costs to appellant to abide event.  