Van Vechten v. Graves

Per Curiam. Whether the declaration, in this cause, contains a sufficient averment of notice of a breach of the condition of the bond, or whether such an averment was at all necessary, are questions which cannot arise on the present motion. The defendant has seen fit to traverse such notice, and issue is thereupon taken; the question, which arose on the trial, related to the sufficiency of the proof to maintain such issue ; and the only point, now before the court, is, whether it was competent for the assignees of the bond, to give notice of the breach, and request a performance of the condition. The assignees were the proper persons to give such notice ; they alone were beneficially interested in the covenant. It was proved that the defendants had notice of the assignment. It has been repeatedly decided, and well settled, both in our own, and in the English courts, that the right of an assignee of a chose in action, will be recognised, and protected. (3 Johns. Rep. 462.) If notice of the breach in this case was necessary, the assignor, might have refused to give such notice; and if the assignees could not, the covenant would, thereby, become nugatory. The defendant’s counsel, upon the argument, seemed to admit,, that the assignees were the proper persons to give notice, but contended that the proof was inadmissible, for want of a proper averment in the declaration. This objection, however, cannot prevail: the proof was in support of one of the issues in the cause ; and whether the declaration contains a sufficient averment, is a question which must arise on a motion in arrest of judgment. [407] We are, accordingly, of opinion, that the nonsuit must be set aside, with cqsts to abide the event of the suit. Rule granted.