190 A.D. 29 | N.Y. App. Div. | 1919
Lead Opinion
This is an action at law brought to recover the balance, $3,122.46, alleged to be due upon the installation of a heating
“ Gentlemen.— You will please pay to the First National Bank of Cooperstown, N. Y., all money that is due or may become due us for the installation of the steam heating apparatus and sanitary fixtures in your new building, and all sums that may become due for materials furnished or labor performed in or about the building.
“ Respectfully,
“ OTIS & SONS ENGINEERING CO.,
“ By J. S. Otis, Pres.
“Accepted: The Arthur H. Crist Co.,
“ By Arthur H. Crist, Pres.
■“ July 23, 1909.”
This action was commenced in December, 1912. The original plaintiff, the Otis & Sons Engineering Company, set forth two causes of action, one on contract, and one of quantum meruit. The defendant, after putting in issue the material allegations of the complaint, alleged payment and pleaded a counterclaim alleging that the plaintiff failed to furnish a heating plant which would develop the proper degree of heat, and thereby the defendant suffered damage in the sum of $5,600. In April, 1913, issue was joined by the service of a reply. The Otis & Sons Engineering Company having become bankrupt, its trustee above named was substituted as plaintiff. On July 31, 1916, the trustee sold the cause of action set forth in the complaint, and the claim upon which the same was founded, to George E. Hipp, who sold and assigned the same to the First National Bank of Cooperstown.
The action was upon the calendar for the Trial Term commencing February 25, 1918, and when reached the defendant moved for a dismissal of the complaint, which motion was granted with leave to the plaintiff to move at the term to be held April eighth to reopen the judgment. At that term the plaintiff and the First National Bank of Cooperstown, N. Y.,
The assignment and acceptance of July, 1909, were not set forth in either of the original pleadings, but are set out in the appellant’s moving papers upon this application. The order accepted July 23, 1909, directed the payment of all money due or to become due upon the contract, and all sums that may become due for materials furnished or labor performed in or about the building. The effect of giving it was to substitute the bank as the recipient of the payments. From the time of its acceptance the defendant was bound to pay all the money to the bank. (Weniger v. Fourteenth Street Store, 191 N. Y. 423, 427; Whiting v. Glass, 217 id. 333, 335.)
The motion would have been proper had the action been in equity, but it was in law; There was also the question of laches which may have influenced the court in denying the motion. In none of the cases cited by appellant did it appear that the defendant had been notified of the assignment and had accepted the assignee as the one to whom the money should be paid. The acceptance of the order discharged the defendant from all liability due or to become due the Otis & Sons Engineering Company for the work and materials therein specified and rendered it liable to the bank. At the time of the commencement of the action the sole right to demand and receive the moneys due and to become due upon the contract was vested in the bank, and the assignment of the trustee in bankruptcy of the bankrupt’s alleged cause of action therefor, transferred no interest within the meaning of section 756 of the Code of Civil Procedure. Neither was the court authorized by section 723 of the Code of Civil Procedure to strike out the name of the
The order appealed from should be affirmed.
All concur, Cochrane, J., in result, except John M. Kellogg, P. J., dissenting, with a memorandum.
Dissenting Opinion
Before action brought, Otis & Sons Engineering Company, the owner of the claim, gave an order upon the defendant for the payment of the claim to the bank, and defendant duly accepted it. Concededly the order was given purely as collateral security. Thereafter the company brought an action upon the claim, and the defendant set up various defenses and a counterclaim, but raised no question that the claim had been assigned to the bank. During the pendency of the action the trustee in bankruptcy of the company was substituted as plaintiff. Upon selling the assets of the bankrupt, its interest in this claim was sold to the bank, and by the order appealed from the bank has been denied substitution.
A fair interpretation of the record bears out the statements made upon the argument, that the motion was not denied on the ground of laches, but upon the ground that the assignor had no right to maintain the action and, therefore, the assignee could not be substituted in its place. On February 28, 1918, the court made an order dismissing the plaintiff’s complaint for want of prosecution, with leave to the plaintiff to move to reopen at the April term of court upon the payment of ten dollars, and with leave to the bank to apply to be substituted as plaintiff. The bank paid the motion costs and filed the stipulation required.
Concededly an action may be maintained by an assignor, who has assigned as collateral only, if his assignee is made a party. The distinction between legal and equitable actions has been abolished, and there is now but one action upon the case, and that action is in a court of justice which will administer legal or equitable relief as the occasion requires, and such
Order affirmed, with ten dollars costs and disbursements.