American Banana Co. v. Venezolana Internacional De Aviacion S. A.

— Order, Supreme Court, New York County, entered July 26, 1978, granting summary judgment to defendant dismissing the complaint, reversed, on the law, with $75 costs and disbursements of this appeal payable to appellant, and defendant’s 614 motion for summary judgment denied. It is conceded in this record that plaintiff, the consignee named in the air waybill on this international flight governed by the terms of the Warsaw Convention, had canceled its order for the goods being transported three days before the flight, because the carrier could not make timely delivery. The goods were delivered to another party, West Indies Food, on the instructions of the consignor. However, plaintiffs status as consignee was never changed on the waybill. Parenthetically, it ought to be noted that on the facts here it cannot be determined at this time whether the consignor elected to treat the cancellation as a rescission, properly made because of the delay, or as a breach of the contract. If the latter was the theory adopted by the consignor, it could resell the goods for the account of the named consignee (Uniform Commercial Code, §2-706), and one who may be sued as a party defendant is surely a proper party plaintiff. It further appears that in a mistaken belief that only the designated consignee could sue the carrier, West Indies authorized plaintiff to bring suit. This is confirmed by affidavits in the record. In its complaint plaintiff has pleaded that it brings this action "on its own behalf and as agent and trustee on behalf of and for the interests of all parties who may be or become interested in the said shipment as their respective interests may ultimately appear.” There is no danger that plaintiff will be unjustly enriched by any award for damages, or that the carrier will be making any liability payment to the wrong party, since plaintiff has brought this action, in part, as a trustee for the consignee who paid for the goods. Thus, by the nature of its claim, plaintiff has put itself in a position of accountability to those who were injured by the carrier. "Any form of assignment which purports to assign or transfer a chose in action confers upon the transferee such title or ownership as will enable him to sue upon it. This is true even though the assignment is for the purpose of suit only and the transferee is obligated to account for the proceeds of suit to his assignor.” (Titus v Wallick, 306 US 282, 289; see, also, Hill v Satra Corp., 65 AD2d 737.) An assignment does not have to be supported by consideration (Park Place Cleaners v Essig, 18 AD2d 896) and it may be made by an oral communication (Schuttinger v Woodruff, 233 App Div 272, 276). Any issue as to the bona ñdes of the assignment is preserved for resolution at a plenary trial by virtue of the eighth affirmative defense which asserts lack of standing to sue. It should be noted too, that the two-year time limitation in which to bring this action (Warsaw Convention, art 29; US Code, tit 49, § 1502) has run on West Indies. We hold, therefore, that in the circumstances plaintiff has standing, to sue by virtue of its status as consignee of record and the assignment of the chose in action for the limited purpose of suit. Concur— Kupferman, J. P., Lane, Sandler and Sullivan, JJ.