52 N.Y. 73 | NY | 1873
The reversal of the judgment rendered upon the verdict found upon the first trial, and ordering another trial of the action, placed the cause for all purposes, except the costs of the former, in the same situation as though no trial had been had. The partial assignment of the judgment by the plaintiff to his attorney to secure his costs and counsel fee before the reversal, so far as the judgment was concerned, became a nullity. There was no longer any judgment in existence. The assignment of a judgment would also include the cause of action upon which it was rendered in case of a subsequent reversal if the latter was assignable. In the present case the cause of action was an assault and battery upon the plaintiff by the defendant. This could not be assigned, either at common law or by the provisions of the Revised Statutes or Code. (The People v. Tioga Com. Pleas, 19 Wendell, 73;McKee v. Judd, 2 Kern., 622; Zabriskie v. Smith,
3 id., 322; Haight v. Hoyt,
The order appealed from must be affirmed.
All concur.
Order affirmed.