York v. Conde

Martin, J. The controversy between the parties to this action was as to the priority of their respective rights to the fund in question. The plaintiffs’ claimed title was founded on an assignment to them made by Witherby & Gaffney, March 27, 1890. The defendants’ rights were based upon an oral agreement with Witherby & Gaffney, made long before the plaintiffs’ assignment, which the defendants contend amounted to an equitable assignmentto them of the fund in question. If the defendants’ contention is sustained by the proof, or if the evidence was sufficient to present a question of fact for the jury upon that question, the judgment must be reversed, and no other question need be considered. The defendants’ testimony was to the effect that in or about the month of September, 1889, the firm of Witherby & Gaffney applied to the defendants to indorse the notes of that firm, to enable it to procure the money necessary to prosecute the work under its contract with the United States government; that the defendants agreed to and did indorse such notes; that, in consideration of such agreement and indorsement by the defendants, said firm expressly agreed that the defendants should have the avails of such contract when it was closed up, with which to pay the notes whichshould be indorsed by them; and that, when the check or draft for the work should be received by said firm, it should be delivered to the defendants, tobe applied by them in paying such notes. If this agreement was made, as testified to, we think, as it was founded upon a valuable consideration.it amounted toan equitable assignment of the fund in question, and that the defendants were entitled to receive and use it for the payment of the notes indorsed by them. That such an agreement amounts to an equitable assignment seems to be well settled in this state. Williams v. Ingersoll, 89 N. Y. 508; Fairbanks v. Sargent, 104 N. Y. 108, 9 N. E. Nep. 870, and 117 N. Y. 320,22 N. E. Rep. 1039. That the defendants subsequently took a written assignment does not affect 382 -such rights. The assignment was not invalid because it was oral. Risley v. Bank, 83 N. Y. 318; Coates v. Bank, 91 N. Y. 20. We think the court erred in holding as a matter of law that the defendants acquired no right to the fund in question under their agreement, and directing a verdict for the plaintiffs, and that the defendants’ exception thereto was well taken. •Judgment reversed on the exceptions, and a new trial ordered, with costs to •abide the event. All concur.