Bowery National Bank v. Wilson — 16 N.Y. St. Rep. 34

Majority

p. 34

The Bowery National Bank of New York, Resp’t, v. John W. Wilson et al., Receivers, etc., App’lts.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

Assignment of bill for services—Evidence of.

The plaintiff held the over-due note of tffe sheriff of New York county, who it was claimed verbally assigned the bills due to him by said county for services, to the plaintiff in payment of said note. The bills for these services were then under examination in the comptroller’s office and the said sheriff went to the comptroller’s office with the cashier of the plaintiff in reference to the matter. Held, that was an act in evidence of the assignment.

Appeal by all the defendants from a special term judgment in favor of the plaintiff upon the merits, and by the defendants Wilson and Knowlton, from an order denying a motion to re- settle said judgment by striking out that portion which provides that they shall pay the costs.

Henry D. Hotchkiss, for app’lts, Wilson & Knowlton; C. W. Cass, for app’lt Tully, receiver; James R. Maroni, for resp’t.

On or about September 10, 1885, the plaintiff bank discounted the promissory note of Alexander V. Davidson, for $4,500, dated August 1Y, 1885, and payable five months after date. The maker was then sheriff of the county of New York. As collateral security for the payment of the note, the bank took from him, on the same day in September, a written assignment of all claims which he should have against the county, for services rendered as sheriff during the month of December, 1885. The note was not paid.

p. 35

Some time in the early part of 1886, after it had become due, Davidson had a conversation with the cashier of the bank in reference to the note .and his December bills against the county, in which it is claimed he made an oral assignment of the demands mentioned in the previous assignment in writing. The bank subsequently sued the mayor, aider-men and commonalty to recover the moneys due the sheriff for services rendered by him in December, and by an order of interpleader the present appellants, who claim the same fund, were substituted as defendants. The plaintiff succeeded upon the trial, and the defendants have appealed.

We should hesitate to affirm this judgment if, in order to do so it were necessary to hold that a sheriff might lawfully assign his official fees before they were earned. Thurston v. Fairman, 9 Hun, 581 . In the case at bar, however, we are of opinion that the evidence sufficiently establishes a valid parol assignment to the bank after the earning of the compensation. From the cashier’s testimony as to his interviews with Davidson subsequent to the maturity of the note, it appears that Davidson used language manifesting a clear intent to transfer to the bank his claim against the county for the services which he had rendered in the December previous. His bills for these services were then under examination in the comptroller’s office, and Davidson went to the comptroller’s office with the cashier in reference to the matter. This was an act in evidence of the assignment, within the authorities cited in the MS. opinion of the presiding justice of this court in the case of Truax v. Slater, referred to in the brief for the appellants. The existing indebtedness was a sufficient consideration for the transfer thus evidenced, and we think it gave the bank a right to the fund in controversy as against these claimants.

The defendants, Wilson and Knowlton, complain of the additional allowance made against them, but we cannot say that it was unwarranted, especially in view of the fact that they wholly failed to disclose the nature of their own claim to the moneys in question.

The judgment should be affirmed, with costs. The order refusing to resettle the judgment is not appealable, and the appeal therefrom should therefore be dismissed, with costs.

Macomber, J., concurs.