Forsstrom v. Utility Steel Co.

Levine v. Hogan-Levine Co. (200 App. Div. 487) has no application whatever to this case. Here there was no performance, no tender of performance, and these plaintiffs assumed all the obligations of their assignor. Even if the latter element were not present, the counterclaim would be available to the defendant under section 267 of the Civil Practice Act, subdivisions 1 and 2.

*410Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, Levy and Crain, JJ.