The defendant, hereinafter referred to as the contractor, had a contract with the State of New York for the improvement of a portion of the Erie canal, under contract No. 62, and sublet a portion of said work on September 28, 1910, to Gabriel Bros. Construction Company, hereinafter called the sub-contractor. The sub-contractor, being unable to complete its agreement with the contractor, on August 2, 1912, entered into an agreement in writing with it by which, among other things, it was agreed that the contract between them should be terminated and canceled as of July 1, 1912; that the sub-contractor transferred and conveyed to the contractor the plant and personal property set forth in the schedule thereunto attached, together with all right, title and interest to the retained percentage still held by the contractor and all claims against the State for delays caused in the carrying out of said contract. Included in said schedule was the following provision: “* * * All Steel Forms upon the site of the contract to be used by the contractor until the contract "or work is completed. (The rent for the same to be paid by sub-contractor.)” The sub-contractor and the contractor mutually released each other from all claims and demands of every kind. The contractor agreed to pay the sub-contractor $45,000, in the manner provided by said agreement, $16,119.67 being paid in cash on the execution thereof. After certain other payments were provided for a balance remained of $20,000, payable as follows: $15,000 in three promissory notes of $5,000 each with interest, due May 20, 1913, and the remainder of $5,000 to be paid in cash as soon as the contractor was satisfied that there were no liens against the sub-contractor which remained unpaid or could be filed, and that the State had no claim against the contractor for the failure of the sub-contractor to comply with the contract and specifications on the work already performed. Then followed this paragraph: “6th. The sub-contractor agrees that if any liens • are filed against ■ the sub-contract he will forthwith discharge the same either by payment thereof or by giving a bond as provided by statute and that he will settle and adjust any claim that may be made by the State against the contractor for failure of the sub-contractor in the proper *468performance of the work already completed. The said sum of $5,000 balance above mentioned shall be retained by the contractor as security for this agreement and in case of the failure of the sub-contractor to comply with the same within a reasonable time, the contractor is authorized to settle and adjust said claims for said balance, the whole balance, however, to be paid and adjusted within one year from the date hereof.” Thereafter, on October 9, 1912, the sub-contractor' assigned to the plaintiff all its right to the said sum of $5,000 retained under the agreement in question, and on October seventeenth the plaintiff notified the defendant of such assignment and furnished a copy thereof to the defendant. In such notification plaintiff claimed that said sum of $5,000 was then due and payable and requested payment thereof forthwith. On March 4, 1913,- the sub-contractor having failed and neglected to pay the rent of the steel forms in question, the owner thereof brought an action in replevin in the New York Supreme Court against both the sub-contractor and the contractor, as the result of which said forms were taken from defendant’s possession, solely because of the failure of the sub-contractor to pay the rent therefor. The defendant was compelled to remove the steel forms from the site of the work by reason of a direction from the sheriff of Orleans county, pursuant to his duty in said replevin action, and in order to complete the. work under the said contract was obliged to build hew wooden forms for the concrete construction and to install them on the line of the operation, at a total cost, including delay and expenses, of over $5,000 and in excess of the plaintiff’s claim. The maximum period of one year within which the said $5,000 was to be payable to the sub-contractor expired August 2, 1913, and this action was commenced December 8, 1913. From a judgment entered upon a verdict of a jury by direction of the court in plaintiff’s favor for the full amomit claimed (the direction of a verdict in favor of defendant having been refused) the present appeal is taken. The respondent insists that the appellant cannot set up any claim for damages against it for the reason that the claim in question was assigned to the respondent and notice thereof given to appellant prior to the time when the alleged offset counterclaim or recoupment arose, and as author*469ity for this proposition relies on Michigan Savings Bank v. Millar (110 App. Div. 670; affd., 186 N. Y. 606) and Siebert v. Dunn (157 App. Div. 387). I do not believe that either of these cases is applicable to the case at bar. In the first case cited the claim there sought to be pleaded as an offset or counterclaim did not arise out of the contract upon which the action was brought but was an independent and entirely separate cause of action in favor of defendant against the plaintiff’s assignor. In that case, as well, there had been complete performance of the contract by the assignor. In the second case cited, there had likewise been a complete performance by the assignor at the time of the assignment, and the contract being a severable and not an entire one, it was held that inasmuch as there had been a complete performance as to the merchandise sold when the assignment was made, the defendant could not set up a breach of the remaining portion of the contract to make other deliveries of similar materials. In the case at bar there had been no complete performance of defendant’s agreement by the sub-contractor when the assignment of this fund was made to the plaintiff. The agreement, of which the plaintiff had notice, gave no right to enforce or demand payment of the $5,000 balance until the contractor had satisfied himself of the non-existence of liens and of any claim upon the part of the State. In no event could the contractor be required to pay said sum or any part thereof until the full period of one year from the date of said contract had expired. Any earlier payment would be a voluntary act on his part. Admitting that the said $5,000 was held as a fund to insure the contractor against the two contingencies therein provided against—the filing of liens and the making of claims by the State (for I do not think the words “as security for this agreement” apply to more than those two specified eventualities) — still it cannot be said that there ever was such performance upon the part of the sub-contractor as brought this case within the decision heretofore referred to until long after the assignment to the plaintiff had been made. The test applied in the cases seems uniformly to be whether or not the assignor has performed his contract fully when he makes the assignment of his rights to recover the moneys payable thereunder. If the contract is so per*470formed, then the assignee takes subject to no defense or counterclaim subsequently accruing against the assignor. If he has not so performed, then the assignee takes subject to such counterclaim as may be properly set up against 'the assignor, arising out of the same contract or transaction. (See Code Civ. Proc. §§ 501, 502.)
We think, therefore, that the right to set up any damages sustained by a breach of the contract between them was not limited to such damages as the contractor sustained by the happening of either of the two specific contingencies as a protection against which this fund was held, but as well to any breach by the sub-contractor of his agreement of August 2, 1912, with the contractor. The failure to furnish the use of these steel forms to the contractor was an undoubted breach by the subcontractor of that agreement. But here we are met with the impossibility of determining upon this record what the damage was which the contractor sustained by reason of such breach. Ordinarily it would be the rent which it was required to pay in order to secure to itself the contracted right to use these steel forms. The record does not show for what period the unpaid rent was due which formed the basis of the replevin action. There is nothing to show that the defendant could not have secured the right to continue to retain and use these steel forms in its work by continuing to pay the rent stipulated by the subcontractor. If the defendant could have continued the use of the forms by paying the stipulated rent, it was its duty to have done so, rather than incur the expense of removing them and substituting others. If, on the other hand, the defendant for some undisclosed reason could not possibly have secured from the owners the right to continue to use the forms, then its damage would be the sum it was required to pay to remove the same and install the substitutes therefor, with the incidental loss due to delay in the completion of the contract. Under these conditions, and in this state of the record, we are unable to direct a final judgment. The judgment appealed from will, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Ingraham, P. J., Clarke and Hotchkiss, JJ., concurred; Scott, J., dissented.