Beckwith v. . the Union Bank of New-York

9 N.Y. 211

• Court: New York Court of Appeals
• Decided: December 5, 1853
• Status: Published

Opinion

/' Johnson, J.,

delivered the opinion off the court.

Section 112 of the Code of 1849, was, we* think, not intended to change the substantial rights of the parties, but only to introduce such alterations in the mode, of protecting them as were rendered necessary by the provisions of §§ 111 and 113, which require in most, cases the- real party in interest to be the, plaintiff. The first branch of the.section will have its full and appropriate meaning if we ¡regard it as providing that “ in the case of an assignment of a thing in actión,, thq action by the' assignee"shall be without prejudice to any set-off of other defence existing at the time of or before notice of the assignment,” which would have been available to the-defendant had the action been brought in the name of the assignor. In other words the provision is that the substantial rights of the defendant shall not be -affected by.the1 substitution of the assignee as plaintiff in place of the assignor. There is no pretence to hold that in an action in the name of the Hunters before the Code the demand of the bank could have been setoff.

Nor had • the bank any lien upon the deposit's of the Hunters, which would have prevented their drawing out the whole balance of cash to their credit on the twenty* fourth of August. This right passed to the plaintiff by the assignment; no notice was necessary to perfect that right in the assignee, except only that in default of notice, the bank might have so dealt as by its subsequent acts to have affected his rights. There is no evidence of any such dealing in this case. The judgment below was beyond all question correct.

Morse, J., was not present..

All the other judges concurred.

Judgment affirmed.