Defendant having defaulted in the service of an answer through apparent inadvertence, moved to open its default, which was denied without opinion or memorandum. Two days later another motion was made before the same judge upon somewhat different papers for the sapie relief. This motion was granted.
The complaint is upon an assigned claim against the defendant, a bonding company, for damages sustained by the attachment of plaintiff’s assignor’s bank account under a warrant of attachment which was subsequently vacated. The answer denies only the validity of the assignment and the amount of plaintiff’s assignor’s damage, and then sets up as a counterclaim a cause of action arising through breach of contract by plaintiff’s assignor which cause of action was assigned, by the plaintiff in the original action to this *531defendant. It is not alleged that the assignment of this latter cause of action was made before notice of the assignment of plaintiff’s cause of action; consequently it does not constitute a valid counterclaim under section 267, subdivision 1, of the Civil Practice Act.
Order opening defendant’s default is, therefore, reversed, with ten dollars costs, and judgment reinstated.
All concur; present, Bijur, Mullan and Levy, JJ.
Order reversed; judgment reinstated.