269 A.D. 395 | N.Y. App. Div. | 1945
The plaintiff appeals from an order and judgment dismissing his amended complaint for failure to state a cause of action. In his amended complaint, the plaintiff alleges, in substance, as follows: That prior to January 26,1937, he was the owner of oil and gas leases covering 3,000 acres in Steuben County, N. Y. That he had engaged Richard M. Atwater to drill a test well upon one of the leased properties known as the Herrington lease. That Atwater began the drilling of the well prior to January 26,1937. That the Southwestern Development Company, hereafter referred to as Southwestern, the predecessor of the defendant, engaged Atwater to negotiate with plaintiff relative to procuring an interest in certain of the plaintiff’s leases. That prior to said date plaintiff and Atwater, with the knowledge and approval of Southwestern, entered into an oral agreement whereby the plaintiff agreed to assign eleven of his leases to Atwater, Atwater was to assign the eleven leases to the plaintiff as security, Atwater in turn was to assign a one-half interest in the leases to Southwestern and Atwater and Southwestern were to jointly develop the leases and market the gas and oil to be taken therefrom. That in keeping with the oral agreement, and with full knowledge and approval of Southwestern, plaintiff, on January 26, 1937, assigned eleven leases including the Herrington lease, selected
A party who pays over after proper notice of an assignment, and demand, does so at his peril. (Continental Purchasing Co., Inc., v. Van Raalte Co., Inc., 251 App. Div. 151, 152; Brill et al. v. Tuttle, 81 N. Y. 454, 457.) The defendant claims that the contract and assignment of January 26,1937, were canceled by an agreement made between the plaintiff and Atwater on February 11, 1937. The plaintiff alleges that that agreement was not intended to abrogate the agreements of January 26,1937, but was made, at the instance of Southwestern, to correct the terminology in reference to certain phases of the agreement and that no new consideration passed. It cannot be held, under the circumstances, as a matter of law, that the agreement of February 11th abrogated the previous agreements. (Cf.
All concur. Present — Taylor, P. J., Dowling, Harris McCubn and Larkin, JJ.
Judgment and order reversed on the law, with costs, and motion denied, with $10 costs. [See post, p. 924.]