Davis v. Lohsen

34 Misc. 769, 68 N.Y.S. 795

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1901
• Status: Published

Opinion

Andrews, P. J.

This is an appeal from a judgment of the Municipal Court in favor of the plaintiff for the sum of $189.17. The evidence shows the following facts: Eor some years Mrs. Root, the wife, and now the widow of D. Frank Root, carried on the livery business under the name of the “ Grand Central Stables,” in West Forty-sixth street, in the city of New York, her husband being the sole manager of the business. About a year before Mr. Root’s death, which occurred in September, 1899, the business was incorporated under the same name. The-defendant was a grocer, who kept his horses in said stable, both before and after the incorporation, and sold, groceries to the Roots, and sometimes loaned them money. The corporation became insolvent, and this action is brought by the trustee in bankruptcy to recover for moneys claimed to be due to the corporation for the board of the defendant’s horses. The books of the corporation were admitted in evidence, without objection, to establish the plaintiff’s claim., The defendant set up a counterclaim for the amount of a note given by said D. Frank Root, and also for groceries furnished the Roots, with interest, and also $10 claimed to have been loaned to said Root, amounting in all to $355.40. The counterclaims were dismissed and plaintiff had judgment for the amount claimed.

. No error was committed upon the trial, for whatever equities, if any, the defendant may have had as against the Roots, he could not, as against the trustee of an insolvent corporation, set up the counterclaim in question.

The judgment should be affirmed, with costs.

■O’Gorman and Blanchard, JJ., concur.

Judgment affirmed, with costs.