Baker v. Secor — 28 N.Y. St. Rep. 923

Majority

p. 923

Jarvis S. Baker, Resp’t, v. William H. Secor, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 2, 1889.)

Headnote

1. Assignment—Delivery.

Where there is no denial that a judgment was legally assigned, whether the assignment was delivered to the assignee or to some third party for his benefit, or whether it rested in paroi only, is irrelevant.

3. Judgment—Assignment for convenience does not prevent satisfaction.

An assignment of a judgment to an attorney for convenience only, and for the judgment creditor’s benefit, cannot prevail against a settlement of the judgment made by the beneficial owner.

3. False imprisonment—Assignment of claim to one joint tort feasor RELEASES THE OTHER.'

Defendant as attorney issued an execution against the person of plaintiff on a judgment recovered against him by his son. Plaintiff recovered a judgment for false imprisonment, which was afterwards set aside. Pending an appeal, plaintiff assigned the judgment and claim to the son in settlementof the judgment on which he had been a.rested. Held, that defendant - was thereby discharged from liability.

Appeal from judgment in favor of plaintiff for $5,224.46 and from order denying motion for a new trial.

Action for false imprisonment.

In January, 1884, plaintiff’s son recovered judgment against Mm for wrongful conversion of moneys, and after return of execution against property unsatisfied, and at the instance of said son, defendant, who was his attorney, caused an execution against the person to be issued, upon which the plaintiff was arrested and detained for three days in custody of the sheriff, who caused him to be placed in a cell with criminals.

Plaintiff then brought action for false imprisonment against defendant in which he recovered judgment for $5,373.77, which was afterwards set aside. Pending the appeal therein plaintiff compromised his claim for damages with his son, and assigned to him his claim and the judgment recovered by him, in consideration of the satisfaction and discharge of the judgment recovered by the son and on which he had been arrested.

On a second trial of this action the jury rendered a verdict for $1,000 in plaintiff’s favor, but the j udgment thereon was reversed by this court. 22 1ST. Y. State Rep., 97.

John Hallock Drake, for app’lt; B. W. Downing, for resp’t.

On January 20, 1887, while the facts were fresh in Ms 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.

p. 924

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 soni 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 ” any assignment of the judgement 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 afterwards assumed 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.

Dykman, J., concurs; .Barnard, P. J., not sitting.