Moroney v. Cole

Leventritt, J. The plaintiff sued on a claim alleged to have been assigned to him by the Aster Company. His ownership of the claim was put in issue. Upon the trial the plaintiff offered in evidence the assignment, after its identification by the secretary of the Aster Company. The record discloses the following colloquy between court and counsel: “ Plaintiff’s Counsel.— We offer the paper in evidence. Defendants’ Counsel.— Objected to as incompetent, irrelevant [455] and immaterial] that the paper is not properly proved and is not a sufficient assignment. There is no evidence whatsoever that it is a proper assignment. The Court.— Paper excluded. Plaintiff’s Counsel.— I desire to caff your Honor’s attention to the fact that the defendants’ counsel in this case cannot question that assignment. It is not within Ms province to do- so. According to the ease of Sheridan against the Mayor, the defendant cannot question the validity of the assignment if the assignment is sufficient. Here is an assignment executed by an officer of the corporation in the name of the corporation assigning the account. An assignment of account does not need to be in writing. The Court.— There must be authority for it. There is no evidence of any corporate act or anything of that kind before me.” Thereupon the plaintiff offered in evidence a resolution purporting to authorize the execution of the assignment. The defendants objected on the ground that the resolution was incompetent, irrelevant and immaterial and the record continues as follows: “ Defendants’ Counsel: * * * Here is a paper which is separate, and comes into court separate and distinct which your Honor has admitted over my objection, that is Exhibit B ’ and when you say you would not take the assignment as a separate exhibit they immediately annex it to the other paper. Mr. Epstein is a lawyer and I do not see what authority he has to do this, and I object to the admission of the paper on the ground that they are separate and distinct instruments. The Court: Hot necessarily. Defendants’ Counsel: And I further object to the alleged assignment on the ground that it is insufficient and improper in form.” To the proposed case on appeal from a judgment in favor of the plaintiff-respondent, the defendant-appellants proposed amendments which called for the striking out from the case of the portions of the record which we have quoted. These amendments were allowed by the trial judge; the portions referred to were stricken out and the defendants’ motion to resettle the case and restore them denied. The order entered on that denial gave rise to this appeal. [456] We think the portions of the record omitted should he included in the case on appeal. The assignment to the plaintiff bears no date, and the resolution, dated December 28, 1906, purports to ratify an assignment of November 1, 1906. If, as we infer from the record, these instruments were not attached until after the offer of the assignment had been rejected and they were then attached in the manner suggested, the appellant is entitled to have these circumstances appear in the record. We are not concerned with the effect these circumstances have on the questions which may be presented on the appeal. But we are concerned with the right of the appellants to have such a statement of the proceedings on the trial, such a reproduction of the occurrences incidental thereto, as will enable them to secure a proper reconsideration of what actually took place. An. appellate court must necessarily be governed by the record on appeal, irrespective of the incidents of the trial. It is, therefore, the duty of the trial court to see to it that the case presented for review contains substantially all that transpired, to the end that the ultimate rights of both parties may be intelligently considered and effectually conserved. While, ordinarily, colloquy between court and counsel has no place in the record on appeal, we do not think that the order in this case was proper, since its effect would be to deprive the defendants of their right to have what may prove to be a most material circumstance reviewed. The order must be reversed, with ten dollars costs, and the motion granted. Gilbebsleeve and Erlanger, JJ., concur. Order reversed, with ten dollars costs, and motion granted. Footnotes [*] See 52 Misc. Rep. 451.