98 N.Y.S. 1071 | N.Y. App. Div. | 1906
Ervin C. Gollner is the owner of certain premises in the city of Hew York, which said premises were leased to the defendant by the month at the rate of thirty-five dollars per month in advance. This action is. brought by the plaintiff as assignor of the claim to recover the rent for the month of March, 1:905. The defendant alleges that lie had been renting .the premises for some time prior to the month of March, 1905, and that prior to the commencement of that term he had complained to his landlord of the condition of the bathroom, or the manner in which it was being used by other tenants, and that the landlord had agreed to cause the same to be corrected, and that under these conditions he had entered upon the tenancy for the month of March but that the difficulty continuing, he renewed his complaint, and, upon the landlord telling him to leave the premises he moved out, surrendering the premises to the landlord, and it is Claimed that this amounted to an eviction, justifying the defendant in refusing to pay for the full month’s rent. Sully V. Schmitt (147 N. Y, 248), cited in support of the theory of eviction, does not sustain the defendant’s position, and we are persuaded that there is no doubt of the fact that the defendant owed Gollner the sum of thirty-five dollars at the time the latter assigned the claim to the plaintiff, and that the judgment which has been found in favor of the iatter'is justified under the facts disclosed by the evidence, unless there is merit in the further contention of the defendant that the assignment of the claim in suit is in violation of section 73 of the Code of' Civil Procedure. The section cited pro
There is no suggestion that the plaintiff- in this action is an attor ney or counselor at law, but the defendant has introduced evidence to show that the plaintiff’s attorney in the present action was originally employed by the landlord to collect the claim for rent against the defendant; that on the 31st day of March, 1905, the said attorney wrote to the defendant that “There has been left in my hands for collection a claim against you for rent of premises Ho. 245 East 137th street amounting to $35. If the same is not paid on or • before the 4th day of April, .1905, action for its collection will be commenced;” that on the following day, April first, the landlord assigned this claim to the plaintiff ; that the plaintiff was a neighbor of thé said attorney on Staten Island, and that they had offices together in the city of Hew York, and that the assignment was drawn by the said attorney and executed and delivered in his'office; that the assignment was turned over to the said attorney, and that he subsequently brought this action- on the 7th day of April, 1905, in the Municipal Qonrt. We fail to find any evidence that Mr. Moore, the attornéy, has any interest in this claim, directly or indirectly. So far as the assignment shows anything, it shows a valid assignment of a valid claim to the plaintiff; it shows the assignment of claim which the landlord had, through his attorney, threatened to sue if it was not paid within a given time; and the "undisputed evidence shows that the claim was not sued until several "days after the time limited. The defendant had all of the-time'from the thirty-first day of March to the fourth day of April to pay this just claim ; he was actually given until the seventh day of April before suit was commenced, and he could have -prevented the action by paying the claim at any time before suit was brought, and it seems to us entirely clear that the defendant has entirely" failed, to show that there has been any violation of the provisions of section 73 of the Code" of Civil Procedure. It cannot be said from the evidence produced upon the trial that the plaintiff's attorney had any interest in this claim, or that it was purchased by him, directly or indirectly, “with the-intent and for the purpose of-
The Court of Appeals in Moses v. McDivitt (88 N. Y. 62, 65), in commenting upon the language of the Eevised Statutes (2 R. S. 288, § 71) which has been revised in section 73 of the Code of Civil Procedure, say : “ This language is significant and indicates that a mere intent to bring a suit on a claim purchased does not constitute the offense; the purchase must be made, for the very purpose of bringing such suit, and this implies an exclusion of any other purpose. ■ As the "law now stands, an attorney is not prohibited from discounting or purchasing bonds and mortgages and notes, or other dioses in action, either for investment or for profit, or for the protection of other interests, and such purchase is not made illegal by the existence of the intent on his part at the time of the purdíase, which must always exist in the case of such purchases, to bring suit upon them if necessary for their collection. To constitute the offense the primary purpose of the purchase must be to enable him to bring a suit, and the intent to bring a suit must not be merely incidental and contingent. The object of the statute, , as stated by Chancellor Walworth in Baldwin v. Latson (2 Barb. Ch. 306), was to prevent attorneys, etc.', from purchasing things in action for the purpose óf obtaining Costs by the prosecution thereof, and it was not intended to prevent a purchase for the purpose of protecting some other right of the assignee.” This case has never been overruled or criticised so far as we have been able to discover, and it undoubtedly correctly states the objects and limitations of the statute, so that if the plaintiff’s attorney hi "the present case was actually interested in the claim, the evidence would fail to establish the necessary facts to bring him within the prohibition of the statute, for it clearly does not show that his ,object was the bringing of the action'for the purpose of costs, or for any other purpose, except the collection of this legitimate claim after the defendant hail neglected to pay the same within the time limited in
The appellant insists, however, that the rulings of the court present error. . The plaintiff, called as a- witness by the defendant, had testified to his residence, his office rooms and the assignment, and was then asked: “What conversation had yoú with Hr. Gollner, the landlord, prior to his giving you this assignment ? ” This was objected to generally, and the court sustained the objection, stating that it was on the ground that some part of the conversation would relate to the instrument, which was of itself the. best evidence. The reason which the court gives for a ruling upon a general objection may be wrong, and yet .the ruling be right, if there is any valid objection to the question, and in this "case the question did not confine the witness to any particular conversation, or to any conversa
Mr. Grollner, the landlord, called as a witness for the defendant, was asked: “Before the assignment was delivered by you to Hr. Wightman had Hr. Hoore advised you to make it to Wightman ? ” This was objected to and the objection sustained. There was no issue in this case of the motive of Hr. Grollner, or upon what advice he may have acted ; the defense interposed was that' the plaintiff’s' attorney was interested in this claim in violation of the provisions qf section 73 of the Code of Civil Procedure, and the fact that Hr. Hoore might have advised his client to assign the claim to Hr. Wight-man, even for'the purpose of facilitating the collection'of the claim, would not tend to establish the defense, and the ruling was justified because the answer sought was not material to the issue. The same reasoning applies to the ruling in reference to Hr. Hoore, when he was asked if the assignment was made to Hr. Wightman at his request. At most there would seem to have been concerted action on the part of. Grollner, Wightman and Hoore to collect a valid claim after giving notice that it would be sued if not paid within a specified time," and we are convinced that this is not a violation of the provisions of section 73 of the Code of Civil Procedure, and that is the only defense in this case, aside from .the alleged eviction, which is without merit.
The judgment appealed from should be affirmed, with costs.-
Jenks, Hooker and Rich,-JJ., concurred.
Judgment of the Hunicipal Court affirmed, with costs.
See 1st Am. ed.— [Rep.