Riker v. Curtis, 17 Misc. 134

17 Misc. 134 | N.Y. App. Term. | 1896

McAdam, J.

The action is to recover the amount of two loans made to the defendant by Jacob F. Wyckoff, onb of $400 on July 31, 1886, the other of $510 on August 16, 1886. The loans are evidenced by two checks drawn by Wyckoff to- the defendant, and by him indorsed, and, after payment by the bank, returned to Wyckoff as vouchers. It is conceded that the checks were not given on any debt owing to' the defendant, but in a transaction brought about by one Stilwell, then the attorney for the defendant. Stilwell wrote to Wyckoff, July 29, 1886, stating that his client had executed a deed to one Linus H. Bailey of certain real estate between Eighth and Ninth avenues and Ninety-eighth and Ninety-ninth streets, this city, on which there was $1,000 consideration unpaid; that the defendant wanted a loan of $400, and that he would give an order on Bailey for the money. The $400 was thereupon loaned by the first check. On August 14, 1886, the defendant executed an assignment to Wyckoff of the $1,000 due to him on the Bailey sale, and appointed him his attorney in fact to receive that amount from the vendee. Stilwell delivered this instrument to Wyckoff, and received for his client the loan of $570 represented by the second check. So that these two checks and the assignment represented, so far as writings'are concerned, the transaction between Wyckoff and' the defendant.

Bailey never materialized, was never seen by any party to the transaction, and could not be found, though it was at the time represented that he was expected from the country in a few days. He was undoubtedly a myth. Hutchins, the attorney who was said to represent him, absconded, and Wyckoff had no One to look to but the defendant. Wyckoff asked the defendant for a deed of the Ninety-eighth street land, but he declined to execute it, because his lawyer said he would be indicted if he did. The defendant claimed that the transaction was a purchase of the claim asserted against the undiscoverable Bailey; but the jury, upon evidence sustaining their conclusion, negatived this contention by finding that it was, as alleged by the plaintiff, a loan of money to the defendant secured by the transfer of the supposed claim.

The next defense was the Statuté of Limitations. The action was commenced by the personal service of the summons on the defendant September 28, 1892, about four months after the statute had apparently barred the action as to the first, note. The plaintiff answered this defense, first, by evidence showing the payment of $10 on account at a time which would extend the statutory period beyond four months; and next by evidence of the domicile of the defendant in Connecticut, and by absences' from this state which saved the claims in suit from the operaron of the statute invoked. The jury, upon evidence warranting tueir finding, found adversely to the defendant on all these matters, so that there was. nothing left of this alleged defense.

The evidence established that-the defendant was bom in Connecticut,. so that was-his domicile by birth; he voted there in 1884, and was in that year the candidate for governor on the People’s-ticket; his family resided in Bridgeport from 1885 to 1889; hewas a regular commuter on the railway to that place; and he testifies that he went back and forth to see his family “ just as a man does having his homé out of town and his office in town.” Every person has a domicile, and if the defendant was not an actual resident of. Connecticut during those years It is difficult with legal accuracy to locate his home at any other place. Without pursuing the- inquiry further, and independent of the question of part payment, we fail to see how the Statute of Limitations can be,held a bar to the action. Code, § 401; Bennett v. Cook, 43 N. Y. 537.

This brings us to the plaintiff’s right to sue as assignee of the demands. The plaintiff alleges an .assignment by Jacob F. Wyckoff to Emily E. Wyckoff, and then founds his title upon a transfer to him by her executor. The assignment to the plaintiff is conceded to be sufficient, but the one to the plaintiff’s assignor is attacked. In respect to this Jacob F. Wyckoff testified that he had assigned his claim to Emily F. Wyckoff. Whether in fact he transferred hia title depended largely On the question of intent. He testified that he so intended, and this estops him from claiming differently. Anthony v. Wise, 21 N. Y. St. Repr. 328; 4 N. Y. Supp. 129. One of the tests "of the validity of a-transfer is whether the defendant is sufficiently protected from a subsequent action by the alleged transferor. Hays v. Hathorn, 74 N. Y. 486. The defendant is in this instance so protected.

The plaintiff upon the trial produced the checks and transfers. They were inferentially delivered to show that Jacob F. Wyckoff';, had surrendered all control over the evidence of the transactions, arid made an absolute appropriation of them in aid of the oral transfer testified to by him. Rupp v. Blanchard, 34 Barb. 627.

Ho formality is necessary to effect the transfer of a chose in action. Any transaction between the contracting parties which indicates "their intention to .pass the beneficial interest in the right from one to the other'is sufficient for that purpose. A debt or claim may be assigned by parol as well as by writing. Hooker v. Eagle Bk., 30 N. Y. 83; Fryer v. Rockefeller, 63 id. 268; Risley v. Bank, 83 id. 318; Greene v. Ins. Co., 84 id. 574, 575; Clegg v. N. Y. N. U., 72 Hun, 395; Hastings v. McKinley, 1 E. D. Smith, 273; Waldron v. Baker, 4 id. 440; Gould v. Ellery, 39 Barb. 163; Sexton v. Fleet, 2 Hilt. 477, and kindred cases. It will be presumed that the purchase' was made upon a valuable consideration paid at the time, when this is necessary. Eno v. Crooke, 10 N. Y. 60. The books are full of cases upholding transfers, to effectuate the intention of the parties, whenever it could be done without contravening some statute or ground of public policy. Where there is no written transfer, the question whether there has been in fact such an appropriation as to effect a transfer is one of fact for the jury, and they have found thereon in favor of the plaintiff, and the testimony, viewed in the light of purrounding circumstances, sufficiently, sustains their findings.

The written assignment referred to by Jacob F. Wyckoff in his testimony is in effect a transfer to Emily F. Wyckoff of. the collateral agreement given by the defendant, on which it was at the time.erroneously supposed by them that $1,000 could be collected from Bailey. .That was put in writing probably because the transfer from Bailey was in writing, and the fact that Jacob F. Wyckoff formally transferred this collateral agreement is another link in the chain of circumstances tending to show that he intended to transfer’ bis entire interest in the transaction to Emily F. Wyckoff. The loan to the defendant was evidenced only by the two checks, and these Jacob F. Wyckoff in like manner delivered over to her; so-that she was effectually substituted to all his rights, with just such documents as he had. to represent the debt owing by the defendant.

The result reached in the court below accords with every notion of substantial justice, and as the exceptions are without merit the judgment must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.