Opinion
March 20, 1961
In an action by an assignee to foreclose a purchase-money mortgage on real property, in which defendants, the mortgagors, interposed a defense and counterclaim based on the assignor's breach of an agreement, the defendants appeal from an order of the Supreme Court, Westchester County, dated November 2, 1960, which granted plaintiff's motion for summary judgment striking out their answer, pursuant to rule 113 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion, the answering affidavits raise a triable issue. The counterclaim is properly interposed and the damages, if any, established on the trial may be offset to the amount of the plaintiff's demand (Civ. Prac. Act, §§ 266, 267). Plaintiff took the assignment of the bond and mortgage subject to all defenses and counterclaims which defendants had against the assignor ( Liebowitz v. Arrow Roofing Co., 259 N.Y. 391; American Guild v. Damon, 186 N.Y. 360), and, consequently, as against defendants the plaintiff acquired thereby no rights greater than those of his assignor ( Stevenson Brewing Co. v. Iba, 155 N.Y. 224). Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.