Hyperlawhypertext legal database Charles F. Hollwedel Co. v. Auerbach & Co. 121 N.Y.S. 597

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Charles F. Hollwedel Co. v. Auerbach & Co.

121 N.Y.S. 597 Court N.Y. App. Term Decision date 1910-03-10 English

Decision Majority — SEABURY, J. · Concurring — BIJUR, J. (concurring).

Contents

Majority

p. 597
CHARLES F. HOLLWEDEL CO. v. AUERBACH & CO.
(Supreme Court, Appellate Term.
March 10, 1910.)

Headnote

Corporations (§ 447[1] )—Assignment to Corporation—Validity.
That a corporation, suing on a claim assigned to it, had no legal existence when the claim was assigned to a third person, is immaterial, where it was subsequently incorporated, and before the commencement of the action acquired the claim.
[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 447.[1] ]
Appeal from Municipal Court, Borough of Manhattan.
- Action by the Charles F. Hollwedel Company against Auerbach & Co. From a judgment for defendants, plaintiff appeals.
Reversed, and new trial ordered.
Argued before SEABURY, LEHMAN, and BIJUR, JJ.
Robert B. Honevman, for appellant.
Phelan Beale, for respondents.

The action is brought to recover $237. The. defendant concedes that $37 is due, but contests the balance of the claim. The claim of $200 was assigned by a corporation known as Hollwedel & Schaefer. The defendant admits that the sum of $200 is due, but claims that he is indebted in this sum to Charles F. Hollwedel, and not to the plaintiff. The defendant seeks to escape liability upon the ground that the transactions resulting in his indebtedness were had with Charles F. Hollwedel personally. He also claims that, if any assignment was proved, the evidence shows that the claim was assigned to Charles F. Hollwedel personally, and not to the plaintiff.

In answer to the first contention, it is sufficient to say that the evidence shows that the transactions resulting in the indebtedness were had with the corporation of Hollwedel & Schaefer. As the record established that the defendant was indebted to the corporation of Hollwedel & Schaefer for $200, the question presented is whether or not the claim for this amount was assigned to the plaintiff. The fact that, at the time of the assignment to Charles F. Hollwedel & Co., the plaintiff had no legal existence is immaterial. The plaintiff was subsequently incorporated, and before the commencement of this action acquired the claim which the corporation of Hollwedel & Schaefer assigned to Charles F. Hollwedel & Co.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.

LEHMAN, J., concurs.

There seems to be little doubt, on the testimony, that Hollwedel took title to the claim in suit, from Hollwedel &

Concurrence

p. 598
Schaefer, as agent or trustee for the Charles F. Hollwedel Company to be formed. This is shown, among other things, by the way the check in payment was signed; i. e., “Chas. F. Hollwedel Co.” The plaintiff, after its incorporation, by its subsequent acts, especially by the bringing of this suit, has ratified or adopted the act of Hollwedel, and thereby acquired his title.

The judgment should be reversed, and a new trial ordered.