Richardson v. Ainsworth

20 How. Pr. 521 | N.Y. Sup. Ct. | 1861

By the court, Emott, Justice.

The case of Muir agt. Schenck (3 Hill, 228) is clearly, and, we think, correctly to the point, that a complete title to a chose in action, consisting of a debt due from a third person, passes by its assignment without notice to the debtor. The judgment in this case was assigned by the plaintiff to one Belt, on the 2d of June, 1860, and he became the owner of the debt, as well as the judgment recovered on it.

The plaintiffs in the judgment against Mary Bichardson procured an order for her examination on the 9th of June, under § 294 of the Code, with a view to an appropriation or application of the present judgment to their benefit, under §297. After this the defendant in this judgment voluntarily paid it to them, and their proceeding was withdrawn.

We agree with the reasoning and opinion.of Judge Johnson in Robinson agt. Weeks, (6 How. P. R., 161,) that such payment cannot prejudice a prior assignee in good faith. That case was well considered, and the reasoning of the opinion is perfectly satisfactory.

The payment cannot be construed as made under the compulsory proceedings. They Avere waived and dropped.

But if not, the order gave no lien upon the judgment, or the debt,—certainly not without notice to the assignee, or the defendant in the first and plaintiff in the second judgment. In this case, as the assignment was before the proceedings, it was beyond their power at any rate.

The order is affirmed, with costs.