Richardson v. Mead, 27 Barb. 178

Richardson v. Mead

27 Barb. 178 | N.Y. Sup. Ct. | 1858

By the Court, Balcom, J.

If the defendant had paid to the plaintiff the claim for Wetherby’s work, without suit,'the latter could not have recovered it again, of the defendant, upon proof that the assignment of it to the plaintiff was without consideration. The assignment establishes the fact that Wetherby desired the defendant should pay the plaintiff for the work; and if he had paid the claim therefor, the law would declare that he had done so at Wetherby’s request.

*180There can be no doubt, if Wetherby had only promised the plaintiff that he would transfer-the claim to him, that the plaintiff would have been obliged to aver and prove a consideration for the promise, in order to recover, in an action against Wetherby, for a refusal to transfer it. (See Barnes v. Perine, 15 Barb. 249.) But the transfer of the claim was executed. Wetherby had done all that he had agreed to do with it; and the plaintiff was in possession of a statement of it, and of evidence that he received it lawfully. And where a contract has been executed, it is not always necessary for a party, who claims the benefit of it, to show that there was a consideration for it. (Robertson v. Gardner, 11 Pick. 146.)

It is never necessary for the assignee of a thing in action or contract to prove that he paid or agreed to pay a consideration for it, to entitle him to maintain an action-thereon, in his own name, if he shows that he holds it, and is the real party in interest. (Code, § 111.) A gratuitous assignment, if good on its face, is sufficient; for it passes the title, as between the parties. (Arthur v. Brooks, 14 Barb. 533.)

How the real question in this case is whether it was necessary for the plaintiff to prove that he paid a consideration for the claim, for Wetherby’s work. He clearly might have done this, if there was any consideration for the assignment, notwithstanding its language. (Barnes v. Perine, supra) The assignment states that Wetherby sold and transferred the claim to the plaintiff, at 8. o’clock in the morning of the 13th day of October, 1856; and I think we should not presume that he gave the claim to the plaintiff, or that the assignment was without consideration; but rather that Wetherby sold it to the plaintiff for a valuable consideration, paid or agreed to be paid therefor. (See 2 Cowen’s Tr. 47, 2d ed.)

I am of the opinion the assignment of the claim by Wetherby to the plaintiff, in the form it was, established the fact that the plaintiff owned the claim; and that he was entitled to recover.

*181[Chemung General Term, May 11, 1858.

Gray, Mason, Balcom and Campbell, Justices.]

There being no other question in the case, worthy of notice, I tbinV the judgment of the county court should be reversed, and that of the justice affirmed, with costs.

Decision accordingly.