
    Bernhard Stirn, Appellant, v. The Hoffman House Co., Respondent.
    (City Court of New York—General Term,
    February, 1894.)
    In an action brought by an assignee a counterclaim against the assignor may be allowed up to the amount claimed in the complaint, but not beyond it.
    In an action for goods sold by plaintiff’s assignor to the defendant, the latter set up a counterclaim for the amount of discounts on sales made to it by said assignor under an agreement with his general salesman, the amount of which discounts exceeded the claim in suit. The making of the agreement was proved by testimony of the salesman and defendant’s president, and was uncontradicted. Held, that such agreement was binding, and in law was the act of the principal, and that the discounts were properly allowable against the claim in suit; but that an affirmative judgment in favor of the defendant for the excess of discounts was error, plaintiff being an assignee.
    Appeal from judgment in favor of defendant on its counterclaim.
    
      Charles Strcmss, for appellant.
    
      John Delahunty, for respondent.
   Fitzsimons, J.

The plaintiff’s assignor, L. Somborn & Company, were engaged in the business of selling a brand of champagne known as “ Grand See.” 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 ten 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 the 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, with interest.

Judgment was rendered in defendant’s favor upon said counterclaim, over and above the amount claimed by plaintiff, for' sixty-seven dollars and thirty-one cents, and from said judgment this appeal is taken.

The undisputed testimony shows that Edward K. Somborn was the general salesman of plaintiff’s assignor. As such, his agreement to allow a discount and fixing prices was binding, and in law was the act of his 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 sixty-seven dollars and thirty-one cents, because plaintiff is an assignee.

The judgment must, therefore, be modified by reducing it sixty-seven dollars and thirty-one cents, and as so modified, is. affirmed, with costs.

Ehrlich, Oh. J., concurs.

Judgment modified, and as modified affirmed, with costs.  