19 Johns. 95 | N.Y. Sup. Ct. | 1821
delivered the opinion of the Court. The plaintiff, in his replication, alleges an assignment, and avers notice. Both were necessary to support the replication, and formed but a single point; the defendant protests, as to the first, which is, in effect, an admission of the assignment in this cause, so that no evidence need be givén in support of it. The only use of a protestation is, that in case the party making it succeeds in the point to be tried, he thereby saves to himself the liberty of disputing, in any other suit, the truth of the allegation which is protested against. (Chitty Pl. 590.)
The notice is admitted, because it was not put in issue by the rejoinder. The • rule is, that whatever is traversable and not traversed, is admitted. (3 Caines, 164.)
But, although the rejoinder, by protesting against the assignment, which is stated to have been made for a valuable consideration, does in effect admit it, yet it¡is evident that the defendant intended to put it in issue, for he further states, that Gleason had no beneficial interest, which is substantially denying, that any transfer or assignment of the demands had been made, for valuable consideration; and,therefore, the protestation may be considered as repugnant or inconsistent with the remaining part of the rejoinder, and may be rejected. The single point in issue, then, is, whether Gleason had the beneficial interest in the demands on which the judgment was recovered. On this issue, the plaintiff held the affirmative. Whether there was a written assignment does not appear. It is to be inferred from the evidence, that the transfer was by parol, which is valid without writing; a delivery of a chose in action, for a good and valuable consideration, is sufficient. (17 Johns. Rep. 284. 11 Johns. Rep. 538. 1 Johns. Rep. 580. Roberts on Frauds, 275.)
After an attentive examination of this case, I am satisfied that the plaintiff has clearly shown a beneficial interest in the judgment, which cannot be defeated by the release; and consequently, that judgment ought to be entered for the plaintiff.
Judgment for the plaintiff.