¶1The plaintiff brings this, action to recover of the defendant the amount due to him as assignee of Benedict & Fowler for goods sold and delivered.
¶2Upon the trial the defendant withdrew from consideration every .defense except an alleged claim for imperfect goods, goods returned, and the sum of $462, which she claimed she had paid the plaintiff’s assignors prior to the date of the assignment.
¶3It appears from, the evidence that about November 20, 1894, H. W. Benedict, one of the plaintiff’s assignors, obtained *238from B. W. Williams his promissory note for $462, dated November 20, 1894, payable to the order of Benedict & Fowler two months after said date, which he indorsed in the firm name and took to S. A. Friedline, the defendant’s manager, and asked him to negotiate the sale of the same.
¶4Mr. Friedline took this to August Kohn, who, upon the' defendant’s guaranteeing the payment of the' note_ at its maturity, advanced the amount thereof.
¶5The note was not paid by the maker and the x defendant paid it about the 24th day of January, 1895.
¶6This is the history of the transaction which constitutes the basis of the defendant’s counterclaim of $462 and the right of set-off against the demand of the plaintiff herein.
¶7It appears in the evidence that'in one of her answers herein the defendant made this note the basis of a counterclaim as. one of her defenses to the cause of action set forth in the complaint.
¶8The records of this court show that 'the plaintiff, demurred to that defense on- the ground that it was insufficient' in' law on the face thereof, and that on the 31st day of January, 1895, the demurrer was sustained.
¶9It -is clear from an examination of the evidence in this case that the set-off alleged in the fifth paragraph of the defendant’s answer is founded on the promissory note.
¶10Eespohdent’S' counsel by his brief admits it, but contends ihat-the law is not as claimed by the appellant.
¶11It is also admitted and the evidence shows that this note Was not due and payable at the time of the making of the general assignment herein, but long after.
¶12It is well settled, however, that in an action by an assignee the defendant cannot offset a note made by the assignors ' which fell due afler the assignment of the subject of the action was made.
¶13This defendant then had no right to offset this note against the demand in suit. ‘ -
¶14An allowance to a party by way of offset is always founded on an existing demand in presentí and not one that may be *239Maimed in "future. Martin v. Kunzmuller, 37 N. Y. 396; Fera v. Wickham, 135 id. 223, 228, 229 ; Myres v. Davis, 22 id. 489.
¶15The case of Maas v. Goodman, 2 Hilt. 275, cited by the respondent, is not the law, nor does the case of Chance v. Isaacs, 5 Paige, 592, aid the respondent, for both of these cases are overruled. (See Martin v. Kunzmuller, 37 N. Y. 402, 403.)
¶16At'page 403, Davies, Oh. J,, says : “ We have held that if at the time of the assignment the defendant has no present debt due and payable by the assignor, he has no set-off and that he- cannot set off against a debt due and payable by him to the assignor a debt of his which matures afterwards.”
¶17The trial judge erred in permitting this offset to be considered by the jury, and the judgment is, therefore, reversed and a new trial granted, with costs to. the appellant to abide the event. •
¶18Van Wyck, Ch. J., and Pitzsimons, J., concur.
¶19Judgment reversed and new trial granted, with costs to appellant to abide event.