Grant v. Heverin

Sharpstein, J. That John Hugnes, if he had not assigned the undertaking sued on in this action, might have maintained an action against the defendants, is not disputed. But before any action was' brought on it, Hughes assigned it to Mullany and Mullany to the plaintiff herein. The assignment from Hughes to Mullany was made at the instance and request of John Grant, since deceased, [265] who paid the consideration thereof. After the death of John Grant, Mullany assigned to the plaintiff, who occupies, in our opinion, the same position that Mullany would have occupied if he had not assigned. We think that Mullany held the assignment before the death, of John Grant in trust for him, and after his death in trust for his estate; and that the plaintiff, since the assignment to her, has held it in trust for such estate. And yet we think the plaintiff is entitled to maintain an action upon the undertaking as “ the real party in interest.” Pomeroy says: “It is now settled by a great preponderance of authority, although there is some conflict, that if the assignment, whether written or verbal, of anything in action is absolute in its terms, so that by virtue thereof the entire apparent legal title vests in the assignee, any contemporaneous collateral agreement, by virtue of which he is to receive a part of the proceeds, ‘and is to account to the assignor or other person for the residue, or even thus is to account for the whole proceeds, or by virtue of which the absolute transfer is to be made conditional upon the fact of the recovery, or by which his title, in any other similar manner, is partial or conditional/ does not render him any the less the real party in interest: he is entitled to sue in his own name, whatever collateral arrangements have been made between him and the assignor respecting the proceeds. The debtor is completely protected by the assignment, and cannot be exposed to a second action brought by any of the parties, either the assignor or other, to whom the assignee is bound to account.” (Remedies and Remedial Rights, sec. 132.) Accepting this, as we do, as a clear and correct explication of the law, we cannot do otherwise than hold that the plaintiff was the real party in interest in the undertaking sued on in this action. That being so, no material error was committed by the court below, and it follows that the judgment and order should be affirmed. Judgment and order affirmed. [266] Searls, 0. J., McFarland, J., and Paterson, J., concurred.