
    Nathan Avrutin, Appellant, v. John Hensel et al., Respondents.
    (Supreme Court, Appellate Term,
    May, 1896.)
    Counterclaim — Debt of assignor" of claim in puit.
    , In an action brought "by an assignee, an affirmative judgment cannot be rendered against the plaintiff upon a counterclaim for a debt due from the assignor.
    Appeal from judgment of the Fourth District Court, rendered in favor of the defendants upon their counterclaim.
    Action for the recovery of specific goods received by the defend-. ants as forwarding agents, or for their value, Counterclaim for freight charges incurred.
    Miller & Moermann, for appellant.
    M. L. Towns, for respondents.
   Bischoff, J.

The goods in suit were shipped .by a certain party from a city' in Russia, consigned to one Hirschmann and' to be delivered in the city of Hew York,- a Russian transportation company taking the goods under contract for shipment and delivering the shipper a bill of lading which expressed the terms of a contract of carriage whereby the equivalent of $13 was to be paid upon arrival in Hew York, but to whom this payment was to be made does not appear.

One Frank, who had some interest in the goods, thereafter received a letter from a Hamburg concern naming these defendants as receivers of the goods, although it may be noted that the alleged translation of the letter in evidence merely, refers to the property as “ lost in Hew York.”

Frank, however, was not misled, and called upon the defendants with Hirschmann’s bill of lading, and, making tender of the sum stated in that instrument to be due, demanded the goods, which demand was refused, the defendants claiming a lien for freight charges paid by them to the amount of "$55.05.

Hlrschmann then assigned his claim to this- plaintiff," who has brought this action for delivery of the goods, or their value, to which the defendants counterclaimed their charges, above noted, and judgment proceeded in their favor for the amount claimed.

While there may well be doubt that any claim for freight charges was available to the defendants over and above the amount expressed in the bill of lading (Woodruff v. Havemeyer, 106 N. Y. 129, 134), or that .their counterclaim, founded upon an implied contract, could be entertained in this action for the goods as connected with the subject of the action or arising out of the transaction in suit (Romaine v. Brewster, 10 Misc. Rep. 120), it is not essential that these points be decided since, in any event, the judgment must be reversed for the very obvious error committed by the justice below in allowing a recovery by the defendant against the plaintiff, personally, for a debt due, if at all, from his assignor of the cause of action. Montanye v. Montgomery, 47 N. Y. State Repr. 114.

As a defense alone this claim might possibly have prevailed, but an affirmative judgment against the plaintiff, based upon it, was quite without warrant in law.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

Daly, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered,' with costs to abide event.  