1 Hilt. 114 | New York Court of Common Pleas | 1856
Broglie, the assignor, stated, on his cross-examination, that he received, as a consideration for the assignment of bis claim against the defendants, the sum of $100, and that the plaintiff, to whom the claim was assigned, and the assignor’s brother-in-law were to have one-half of the judgment. The de
The assignment to the plaintiff was under seal, it is true, but no objection to the examination of the assignor on this branch of the case was taken, and the plaintiff is concluded by his answers.
We have decided in Hastings v. McKinley (1 E. D. Smith, 278), that whether the plaintiff’s title be legal or equitable, if he have the whole interest he may maintain an action. The plaintiff had not the whole interest. He and the brother-in-law of the assignor were to have one-half of the judgment. The .witness did not state that each was to have one-half of the judgment, and may be understood to have mep,nt one-half of the judgment to them collectively, reserving the other half to himself. However this may be, it is clear that the plaintiff had not the whole interest, and that this action could not be maintained in his name.
Sections 111 and 113 of the Code do npt contain any class of exceptions which will save the plaintiff’s case in this respect. The contract was not made for the benefit of the assignor’s brother-in-law exclusively, but for his benefit and the benefit oí the plaintiff; thus creating a joint interest in the recovery, and not an interest for the brother-in-law in the name, of the plaintiff.
If the plaintiff could be regarded, as .to .the .brother-in-law’s interest, a trustee of an express trust within section 113, this action could not be maintained in its present form. The plaintiff’s recovery must be secundum allegata, and he has made no allegation of any other than an individual claim against the defendants.
This view being fatal to the judgment, it is not necessary to consider the other questions presented, and the j udgment must be reversed.
