Noonan v. Mechanics & Traders Bank — 44 N.Y. St. Rep. 768

Majority

p. 768

Michael Noonan, Resp’t, v. The Mechanics & Traders Bank, App’lt.

(City Court of New York, General Term,

Filed February 8, 1892.)

Headnote

Assignment—Claim against city—Liability op assignee to iietumv BALANCE.

Plaintiff, who was indebted to various parties, assigned his claim against, the city under a contract to defendant for the purpose of paying such indebtedness. Defendant assigned it to its attorney, who collected it and: retained a balance for his services. Held, that the balance after payment of the debts belonged to plaintiff and should have been returned to him,, and that defendant was liable therefor.

Appeal from judgment in favor of plaintiff.

Kellogg, Bose & Smith, for resp’t; Thomas J, McKee, for app’It..

The city of New York owes the plaintiff moneys for work done and materials furnished, for which he and! Thomas J. McKee, the defendant’s attorney herein, obtained judgment for the sum of $126,979.30, which was paid by the city to McKee on May 1, 1884.

Prior to that time the plaintiff was indebted to various persons: in large sums of money. For the purpose of paying these debts, he executed and delivered to each of his said creditors an assignment of his said claim against the city.- Each of said assignments was in a sum sufficient to pay the ¿laim of the creditor holding;'

p. 769

the same, except the assignment to Stevan, which assigned plaintiff’s claim in full; also so was the one to the defendants; and they in turn assigned to McKee their respective claims ; this was done for the purpose of giving McKee authority to collect said money from the city and pay it over to the various parties entitled to it. He paid over all the money he received from the city except the-sum of $1,000, which he kept as compensation for his services.

The action is to recover from the defendant said $1,000. . On the trial of this action judgment was rendered for plaintiff lori $1,443.36 by direction of the court.

The order which the plaintiff delivered to defendant simply entitled it to receive from the city all monies due from the city to plaintiff under his contract. The manner of its disposition by-defendant when so received of course might be shown by oral testimony. For some reason it assigned this privilege to its then and-present counsel, Mr. McKee, but that act certainly does not relieve-it of the responsibility of returning to the plaintiff all monies-collected from the city. This it should have done, except in instances where it was otherwise directed by him.

It is apparent ^rom the testimony that the assignments made by plaintiff to his creditors of his claim against the city were made-for their benefit dpd security and that after the payment of such debts the balance of such claim should be paid over to him. Of the amount received from the city with plantiff’s assent the sum of $125,979.30 was paid to plaintiff’s creditors, which included defendant, and the balance, $1,000, was retained by defendant’s assignee and counsel: This he had no right to do, but should

have paid it over to defendant, whose duty in turn it was to pay-such sum over to plaintiff.

We believe that no errors were committed upon the trial.

Judgment affirmed, with costs.

McGown and Van Wyck, JJ., concur.