43 Barb. 58 | N.Y. Sup. Ct. | 1864
By the Court,
The assignment, the validity of which is in controversy upon this motion, was made and delivered by the party to his attorney immediately after the recovery of the verdict. It was made to pay, or apply upon, a debt owing to the attorney for his services and disburse-. ments, which in law constituted a valid consideration. (Van Pelt v. Boyer, 8 How. 319. Ward v. Syme, 9 id. 16 Roberts v. Carter, 17 id. 341.) And, in terms, it transferred the verdict and the judgment to he entered upon it.
If this assignment was valid, the motion to set off the judgments can not prevail; because the right to set-off does
When the present assignment was made, there was neither a judgment nor the right to enter one; for, upon the defendants’ motion, judgment was suspended, until certain exceptions they had taken were first heard, and decided by the general term.
This brings the present controversy to the question, whether the assignment had the effect to transfer the verdict, and the judgment when entered, to the attorney. That depends upon the assignability of a demand for a personal tort, after verdict.
The primitive rule of the common law did not permit a demand' arising out of a tort to be assigned. Claims of that nature did not survive the party entitled to assert them. A change was afterwards made in this rule, by the enactment of certain statutes allowing the personal representatives to maintain trespass de bonis asportatis, where the right of action accrued in the lifetime of the testator or intestate. By an equitable construction of these statutes, the right of the personal representatives to maintain the action was afterwards extended so as to include all actions for damages occasioned by injuries to the property, as distinguished from injuries to the person of the deceased. The same principle was embodied .in the statutes of this state. And as a consequence resulting from the enactment of these statutes, and the liberal construction to which the courts subjected them, the doctrine was finally established that all demands arising in tort, which survived to the personal representatives, were assignable. The right to assign was held to be coextensive with the right of the personal representative to redress for injuries to the property of the deceased. (The People ex rel. Stanton v.
But without giving too much prominence to the words “successor in interest,” the assignability of the demand, after verdict, is sustained by extending to this amendment the same rule of construction that prevailed under the previous statutes. The reason for applying it to cases within the intent of the last amendment is precisely the same as that which first originated the rule itself.
The only direct authority opposed to this conclusion is the case of Brooks v. Hanford, (15 Abb. Pr. Rep. 342.) That case holds that a demand for damages, on account of a mere personal tort, can not be assigned until a judgment is actually recovered. It is a general term decision, and for the purpose of securing uniformity in the administration of the law, should be followed, unless very manifestly wrong, or clearly in con
In the case of The People v. Tioga Com. Pleas, (19 Wend. 73,) the instrument relied upon as producing a transfer of the cause of action was in the nature of a power of attorney. It empowered the party to whom it was given, to prosecute an action for seduction, for the benefit of the person receiving it. While the court held that it could not have the effect of transferring the cause of action, it also held that an equitable right to the money recovered was created by it. Oowen, J. says: “Suppose Stanton had got the money, could Thomas have recovered it of him ? I should think, not a cent of it.” In Stanton v. Thomas, (24 Wend. 70,) the same instrument again came before the court for consideration. That was an action by the party receiving the power of attorney, against the nominal plaintiff, who had afterwards collected the money recovered by the judgment. The action was assumpsit for money had and received. Nelson, J. delivering the opinion of the court, in reference to the effect of the power of attorney upon the right of action, remarks: “ Upon fair construction, it is a power coupled with an interest, and carries by implication the beneficial right of the cause of action, and was so intended by the parties. The money belongs to the assignee, in equity and conscience, and is wrongfully withheld.” And again: “It belongs to the plaintiff, has been received in fraud of his rights, and it is held against duty and conscience.” Under these authorities the assignment in question, of the verdict and the judgment when entered, certainly conferred upon the assignee an equitable right to the money recovered, superior to that which would have otherwise attached in favor of the moving party, because it was prior in point of time; for the equity, to have one judgment set
Daniels, Grover and Marvin, Justices.]