Steiner v. Fourth Presbyterian Church. The submission of the question of the title to the General Term upon the facts agreed upon, did not change the force or the effect of the agreement to sell and convey to him; it furnished him with an authority for annulling the contract, but he did not conclude to avail himself of it and by demanding the title under the contract he waived the defects, and in so doing he became bound by the contract with the same force and effect as if no defects existed. The learned Appellate Division, in the prevailing opinion, appears to have considered that the defendant was in default in not tendering the plaintiff a perfect title on the day named in the contract and that the plaintiff was free from fault. The difficulty with this conclusion is that if there was a defect in the title the plaintiff waived it. It is true he did not waive it at the time fixed for passing the title, but he did waive it on the 12th of October following, without any new agreement in any respect modifying or changing the contract. His waiver, therefore, must be deemed to relate back to the time when the contract was He required to be completed and stand as of that date. could not postpone his election to take or reject the title, thereby retaining the use of his money and compelling the defendant to be at the expense of preserving the property without reimbursement. If he could do so for eight months he could do so for a year or some longer period. Such a rule would be most unjust and, we think, has no existence. The judgment should be reversed and a new trial ordered, with costs to abide the event. GRAY, O'BRIEN, LANDON, CULLEN, and WERNER, JJ., concur; PARKER, Ch.J., not sitting. Judgment reversed, &c. Note on submission of controversy.-Affidavit must be made by one of the parties, and an affidavit of an attorney for one of the parties is not a compliance with the statute where there is a natural Brown v. Powers. party by whom it may be made. Bloomfield v. Ketcham, 5 Civ. Pro., 407. The Court is confined to the facts agreed upon and cannot make any inferences or in any way depart from or go beyond the statement presented. Crosby v. Thedford, 7 Civ. Pro. 245. Whereupon the submission of a controversy it is impossibie for the Court upon the statement of the facts contained in the case to render any judgment authorized in such a proceeding the submission should be dismissed. Paterson v. Mut. Life, 19 Civ. Pro., 262. CHARLES E. BROWN, TRUSTEE, r. JOHN POWERS. SUPREME COURT APPELLATE DIVISION-FIRST DEPARTMENT, JULY TERM, 1900. § 449. Judgment-Real party in interest. The defense that the plaintiff is not the real party in interest is not substantiated by showing that the plaintiff holds an assignment of a judgment sued on from the person who recovered it, merely as a matter of convenience in obtaining the relief desired, since all that affects defendant is that the plaintiff has the legal title, and that recovery or satisfaction by him will bar all claims by others. (Decided, July, 1900.) Motion by defendant for a new trial upon exceptions ordered to be heard in the first instance at the Appellate Division. George C. Lay, for the motion. S. P. Stillman, opposed. MCLAUGHLIN, J.-This action was brought upon a judgment recovered on the 25th of September, 1878, by Brown v. Powers. the Eleventh Ward Bank against the defendant, the plaintiff alleging that he is the assignee of the judgment creditor, by written assignment, a copy of which is annexed to and made a part of the complaint. The defense relied upon is that the plaintiff is not the real party in interest; that while the judgment has, in form, been assigned to the` plaintiff, it nevertheless, in fact, is owned by the bank; also, that there is another action pending, brought by the bank against the defendant and others, to recover upon the same judgment. Upon the first trial it appeared that on the 14th of February, 1896, the bank, as the then owner and holder of the judgment, brought a judgment creditor's action against the defendant and others, to set aside a deed of conveyance of land, on the ground that the same was fraudulent as to creditors. On the 25th of September of the same year, and while that action was pending and undetermined, the bank assigned the judgment to this plaintiff, who thereupon brought this action to recover the amount of the judgment, together with interest thereon. from the date of its entry. It also appeared that the plaintiff is the cashier of the bank and that the assignment of the judgment to him was for the convenience of the bank "as a more convenient way to get the relief desired" than could be obtained in the action which it had brought. At the close of the trial, substantially the foregoing facts having been made to appear, both parties moved for the direc tion of a verdict, and the learned trial justice thereupon gave judgment to the plaintiff for the amount claimed in the complaint, and directed that the defendant's exceptions be heard, in the first instance, at the Appellate Division. We are of the opinion that in thus directing judgment no error was committed. The judgment which the bank held had, by an assignment in writing, been duly assigned to the plaintiff, and at the commencement of the action Brown v. Powers. and at the time of the trial he had a valid transfer of it, and as such had a legal right to maintain the action upon it. He was the legal owner of it, and therefore was the real party in interest within the meaning of section 449 of the Code of Civil Procedure. A payment to, or recovery by him, of the judgment would protect the defendant against any claim which might be made against him by the bank, or any other person by reason of the judgment. What the consideration may have been, as between the plaintiff and the bank, as the cause or basis of the assignment, did not concern the defendant. The bank had the right, so far as the defendant was concerned, to give the judgment to the plaintiff, to sell it to him for any consideration that it saw fit, or to place him in a position where he could collect it for the bank. All that affected the defendant, and this was the extent of his right of inquiry, was that the legal title to the judgment was in the plaintiff, so that a payment to, or satisfaction by him, would be a full and complete satisfaction as to all others who theretofore had, or might thereafter, claim an interest in it (Sheridan v. The Mayor, 68 N. Y., 30; Hayes v. Hathorn, 74 N. Y., 468; Considerant v. Brisbane, 22 N. Y., 389; Cummings v. Morris, 25 N. Y., 625). The Sheridan case is directly in point. There, action was brought originally by one Jones, upon an account for work done for and material furnished to the defendant. Pending the action the claim was assigned by Jones to the plaintiff, and in the action prosecuted by him, the question litigated was whether he was the real party in interest. There, as here, a written assignment, duly executed and acknowledged, was produced, in terms transferring absolutely for a valuable consideration the demand in suit. As to the execution and delivery of the assignment, there was no dispute, and the case was submitted to the jury to determine whether the assignment was made in good faith, with instructions that if it were not, or if there were not Brown v. Powers. an actual and real sale, the plaintiff was not entitled to recover. An exception was taken to such instruction. The defendant had a verdict, and the Court of Appeals, reversing the judgment entered thereon, speaking through Church, C.J., said: "I think the learned judge erred. A plaintiff is the real party in interest, under the Code, if he has a valid transfer as against the assignor and holds the legal title to the demand. The defendant has no real interest to inquire further. A payment to or recovery by an assignee occupying this position, is a protection to the defendant against any claim that can be made by the assignor Nor is it of any moment that no consideration was paid for the demand by the assignee. The assignor could give, the demand to the plaintiff, or sell it to him, without any consideration. It is enough if the plaintiff has the legal title to the demand, and the defendant would be protected in a payment or recovery by the assignee." * * Here the plaintiff had the legal title to the judgment, and as already indicated, a payment to or satisfaction by him of the judgment would protect the defendant, and this being so he had no right to inquire further. The exceptions should be overruled, the motion for a new trial denied, and judgment ordered on the verdict, with costs. All concur. |