Baker v. Secor — 7 N.Y.S. 803

Majority

p. 803

Baker v. Secor.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

1. False Imprisonment—Joint Tort-Feasors—Assignment of Judgment.

An execution creditor, by unlawfully directing the issuance of an execution against the body of his judgment debtor, becomes a joint tort-feasor with his attorney who unlawfully procures its issuance; and an assignment by plaintiff, the original judgment debtor, to the execution creditor, oí a judgment'for false imprisonment against the attorney in consideration of the discharge of the original judgment, discharges the attorney.

2. Judgment—Assignment—Consideration.

An assignment of his judgment by a judgment creditor to his attorney for reasons of convenience, and for his own benefit, cannot prevail against a subsequent settlement by him with his judgment debtor.

■8. Same—Delivery.

Where it is not denied that the claim evidenced by a judgment has been transferred, it is immaterial whether there has been a delivery of the assignment of the judgment to the assignee, or to a third person for his benefit, or whether the assignment rests in paroi only.

Appeal from circuit court, Queens county.

Action by Jarvis S. Baker against William ,H. Secor for false imprisonment in causing plaintiff’s arrest on a body execution issued on a judgment obtained. in an action by Charles G. S. Baker, the son of plaintiff, against plaintiff, in which action the defendant was the attorney for the son. For the facts, see 4 S". Y. Supp. 303. There was a verdict of $4,500 for plaintiff,

p. 804

and from a judgment thereon, and an order denying his motion for a new trial, defendant appeals.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

William, H. Secor, pro se, and J. H. Drake, for appellant. Benjamin W,. Downing, for respondent.

On January 20, 1887, while the facts were fresh in his mind,, the plaintiff testified that he paid a judgment which his son then held against him by assigning to that son the judgment in this action. That testimony was corroborated by a written document put in evidence, signed by the plaintiff, dated January 25, 1887, in which he stipulates concerning the disposition to be made by the son of the money expected to be realized from the judgment thus assigned. And on January 25, 1887, the son makes a written agreement also concerning the disposition to be made by him of such money. "Upon the present trial, plaintiff and his son were both examined as witnesses, and seem to have lost all memory of these transactions; but there is no denial, that the judgment held by the son against the plaintiff was paid, and the only denial attempted of the assignment by the plaintiff to the son is the statement by the father that he has never “delivered” an assignment of the judgment to his son. That is no denial of the fact that the judgment was legally assigned. Whether the assignment was “delivered” to the son, or to some-third party for his benefit, or whether it rested in paroi only, was irrelevant. The essential fact that the plaintiff had transferred his claim for damages to his son, one of the tort-feasors, for whose benefit it is now prosecuted, was-not denied. That brought the case within the rule laid down upon the former appeal, and the complaint should have been dismissed.

It appears that in June, or July, 1886, the son executed to his attorney an assignment of the judgment he held against his father, which he afterwardsassumed with his father to discharge. Such assignment to the attorney does-not affect the question here. The evidence shows that it was made for reasons of convenience, to be used for the benefit of the son. It could not prevail against the settlement of the judgment made by the beneficial owner.

It was urged upon us that the verdict was excessive. It was clearly so;, but, as the questions above discussed go to the whole recovery, an extended, discussion of that point is not required. Judgment reversed.