Opinion
December 22, 1947.
Appeal from Supreme Court, New York County.
There is nothing to suggest that plaintiff assignee assumed any of the obligations of his assignor under the contract sued upon. There is no basis, therefore, for the entry of an affirmative personal judgment against the assignee plaintiff in excess of the amount sued for, upon a counterclaim against the assignor. Moreover, there is no warrant for assessing against the plaintiff the costs recovered by third party defendants against the defendant. The third party defendants were impleaded at the instance of defendant; plaintiff asserted no claim of any kind against them. Where a defendant in an action at law brings in a third party defendant, he does not thereby convert that action into one in equity. The judgment, insofar as appealed from, should be reversed, with costs to the appellant.
Peck, P.J., Glennon, Cohn, Van Voorhis and Shientag, JJ., concur.
Judgment, so far as appealed from, unanimously reversed, with costs to the appellant. Settle order on notice.