Hamilton v. M'Coun

2 Hall 522 | The Superior Court of New York City | 1829

Oakley, J.

One M‘Kibben, having a policy of insurance, made by the Brooklyn Fire Insurance Company, and a loss having taken place, lodged it in the hands of the defendant, an attorney, for collection. On the 14th of February, 1827, the defendant gave a written certificate that the policy remained in his hands, and on the next day M‘Kibben endorsed, on the certificate, an instrument, by which the defendant was directed to hold the policy, subject to the order of Kane. On the 4th of June, 1827, Kane made a written statement of his claim against M'Kibben, which appeared to be, among other things, for the amount of certain notes drawn by him, and endorsed by one Hill. A suit was commenced by the defendant on the policy, and in February, 1829, he received the sum of $1400 as the proceeds of it. The defendant was duly notified of the order made by M'Kibben in favor of -Kime^and of the claims of the latter. This action is now brought by the representative of Kane, to recover the money thus collected by the defendant on the policy.

The Judge, at the trial, held, that the plaintiff could not recover unless he produced or accounted for the non-production of the notes, specified in the statement of the claim of his intestate, and nonsuited him on that ground. A motion is now made to set this nonsuit aside. It seems to me, that the order made by M‘Kibben, with the notice to the defendant of the claim of Kane, under that order, created an equitable assignment of the right of action of M‘Kibben against the Insurance Company. Kane became thereby entitled to the fund, to arise from the action on the policy, as a security for his claim against M‘Kibben. The defendant, from the time he had notice of that order, became, in the prosecution of the suit, the attorney of Kane, and when he received the avails of it, he received them for the use of Kane. Such appears to be the plain import and meaning of the whole transaction, and such is its legal effect, according to the principles of adjudged cases, [Peyton v. Hallet. 1 Caine’s R. 379. M‘Menomy v. Ferres 3. J. R. 83.]

It was intimated, on the argument, that the claims of Kane against M‘Kibben, had been satisfied by the latter, If that fact should appear on a future trial, and it should also appear that the defence in this case, is made at the request and for the benefit of M‘Kibben, it may probably be effectual, as it will then, be shown that the plaintiff has no equitable right to the money as against M'Kibben. But as the case now stands, the defendant having collected the money as the agent or attorney of Kane, cannot question his right to recover it, on the ground that a third person who, for any thing that appears, is a stranger to the suit, may have a better claim to it.

Nonsuit set aside.

[F. B. Cutting, Att'y for the plff. E. Anthon, Att'y for the deft.]