Opinion
February 15, 1962
Appeal from the Onondaga County Court.
Present — Williams, P.J., Bastow, Halpern, McClusky and Henry, JJ.
Order of Onondaga County Court and order of Syracuse Municipal Court unanimously reversed, with $25 costs and disbursements and motion to dismiss the counterclaim denied, with $10 costs. Memorandum: The plaintiff, as assignee of a conditional sales contract covering an automobile sold to the defendant-appellant by the respondent Reynolds Motors, Inc., brought this action for the unpaid balance of the purchase price. The defendant-appellant interposed an answer setting up a counterclaim for a breach of warranty against the plaintiff and Reynolds Motors, Inc., joining the latter as a party to the action upon the counterclaim. Upon motion of Reynolds Motors, Inc., the counterclaim was dismissed as to it. This was erroneous. The interposition of the counterclaim against the assignee up to the amount of the assignee's demand was authorized by subdivision 1 of section 267 of the Civil Practice Act and the joinder of the assignor as a party defendant upon the counterclaim, along with the plaintiff, was authorized by section 271 of the Civil Practice Act. The conditional sales contract contained a provision to the effect that the buyer agreed "not to set up any claim or defense arising out of the sale against such Seller as a defense, counterclaim or offset to any action by any assignee for the unpaid balance of the purchase price". However this provision of the contract was not enforcible against the appellant in the absence of a showing by the assignee that it had received "no notice of the facts giving rise to the claim or defense within ten days after * * * [it mailed] to the buyer * * * notice of the assignment", together with the statutory notice specified in subdivision 9 of section 302 Pers. Prop. of the Personal Property Law. It does not appear that any such notice had ever been given to the appellant by the plaintiff assignee.