Arnold v. Johnston

28 How. Pr. 249

• Court: New York Court of Common Pleas
• Decided: January 15, 1865
• Status: Published

Opinion

Brady, <.

In this case the plaintiff is entitled to recover the sum of $16.81, with interest from 28th January, 1860. The assignment alleged , to have been made by W. H. Johnston to the defendant of a demand against the plaintiff, was not such as the law requires, assuming for the purposes of this question, and only for that purpose that the demand existed in fact. The defendant states that W. H. Johnston said to him: “I assign this claim to'you if there comes any difficulty,” although the absence of any consideration might not affect the validity of the assignment, were it otherwise full in' its substance, yet the conditional character of it shows that unless there was some difficulty between the' defendant and the plaintiff in reference to the subject matter of this action the assignment was not to operate. I have not been able to find any case in which such an assignment has been sustained as a good set-off or counter-claim.

It may be looked upon as a transfer, to be of no effect until the instant of time when this action was commenced, because at that moment the difficulty must be regarded as beginning in relation to the claim herein prosecuted. Were the condition • one which imposed some duty or obligation upon the defendant, or subjected him to any personal or pecuniary disadvantage, however slight, it might have the effect designed. The assignment here, however, presents no such characteristics. It is a conditional assignment without consideration, and intended to further litigation..

Judgment for plaintiff overruling the counter-claim.