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Iselin-Jefferson Fin. Co. v. Makel Textiles

Appellate Division of the Supreme Court of New York, First Department
Jun 9, 1964
21 A.D.2d 758 (N.Y. App. Div. 1964)

Summary

concluding that plaintiff's only recourse was against the assignor, with whom it had contracted, where assignor had assigned plaintiff's account to a factor assignee and plaintiff later determined that assignor had provided defective goods and services

Summary of this case from Galderma Laboratories, L.P. v. Aquent, Inc.

Opinion

June 9, 1964


Order, entered on or about January 6, 1964, unanimously reversed, on the law, with $20 costs and disbursements to appellant, defendant's motion to consolidate the actions denied, plaintiff's cross motion to dismiss the "set-off and counterclaim" contained in defendant's answer in Action No. 2 granted, and the Clerk is directed to enter judgment in favor of plaintiff against defendant in Action No. 2 in the sum of $110,299.26, with interest from September 1, 1963, and costs. The substance of the counterclaims which are in issue is that Textilfoam, Inc., furnished goods and services to defendant, that the latter paid the price thereof to plaintiff, a factor to whom Textilfoam had assigned the accounts receivable arising from the transactions, that the goods were defective and the services improperly performed, and that defendant is therefore entitled to a refund from plaintiff. McMullen Leavens Co. v. Van Buskirk Co. ( 275 App. Div. 701, affd. 299 N.Y. 784) and Matter of Kaufman ( Iselin Co.) ( 272 App. Div. 578) establish that defendant's remedy is exclusively against Textilfoam, rather than against its assignee. The allegations that defendant's payments were the result of a mistake are no more than a statement that defendant would not have paid for defective goods and services had it known of the defects — a circumstance present and deemed irrelevant in the cases cited. No inference that plaintiff knew or should have known of Textilfoam's deficient performance can be drawn from the statement in the affidavit of defendant's treasurer that plaintiff was aware of Textilfoam's "deteriorating financial condition." Since liability for the full amount sued for in Action No. 2 is not denied, dismissal of the counterclaims requires entry of judgment in that action in favor of plaintiff and renders consolidation of the actions without purpose. Settle order on notice.

Concur — Botein, P.J., Stevens, Eager and Steuer, JJ.


Summaries of

Iselin-Jefferson Fin. Co. v. Makel Textiles

Appellate Division of the Supreme Court of New York, First Department
Jun 9, 1964
21 A.D.2d 758 (N.Y. App. Div. 1964)

concluding that plaintiff's only recourse was against the assignor, with whom it had contracted, where assignor had assigned plaintiff's account to a factor assignee and plaintiff later determined that assignor had provided defective goods and services

Summary of this case from Galderma Laboratories, L.P. v. Aquent, Inc.
Case details for

Iselin-Jefferson Fin. Co. v. Makel Textiles

Case Details

Full title:ISELIN-JEFFERSON FINANCIAL CO., INC., Appellant, v. MAKEL TEXTILES, INC.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 9, 1964

Citations

21 A.D.2d 758 (N.Y. App. Div. 1964)

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