Bowery National Bank v. Wilson

1 N.Y.S. 473, 16 N.Y. St. Rep. 34, 48 Hun 621, 1888 N.Y. Misc. LEXIS 1400

• Court: New York Supreme Court
• Decided: May 18, 1888
• Status: Published

Opinion

Bartlett, J.

On or about September 10, 1885, the plaintiff bank discounted the promissory note of Alexander Y. Davidson for $4,500, dated August 17,1885, and payable five months after date. The maker was then sheriff of the county of Hew York. As collateral security for the payment of the-note, the bank took from him, on the same day, in September, a written assignment of all claims which he should have against the county for services rendered as sheriff during the month of December, 1885. The note was not paid. Some time in the early part of 1886, after it had become due, Davidson had a. conversation with the cashier of the bank in reference to the note and his December bills against the county, in which it is claimed he made an oral assignment of the demands mentioned in the previous assignment in writing. The bank subsequently sued the mayor, aldermen, and commonalty to recover the moneys due the sheriff for services rendered by him in December; and by an order of interpleader the present appellants, who claim the same fund, were substituted as defendants. The plaintiff succeeded upon the trial, and the defendants have appealed.

We should hesitate to affirm this judgment if, in order to do so, it were necessary to hold that a sheriff might lawfully assign his official fees before they were earned. Thurston v. Fairman, 9 Hun, 584. In the case at bar, however, we are of opinion that the evidence sufficiently establishes a valid paroi assignment to the bank after the earning of the compensation. From the cashier’s testimony as to his interviews with Davidson subsequent to the maturity of the note, it appears that Davidson used language manifesting a clear intent to transfer to the bank his claim against the county for the services which he had rendered in the December previous. His bills for these services were then under examination in the comptroller’s office, and Davidson went to the comptroller’s office with the cashier in reference to the matter. This was an act in evidence of the assignment, within the authorities cited in the manuscript opinion of the presiding justice of this court in the case of Truax v. Slater, referred to in the brief for the appellants. The existing indebtedness was a sufficient consideration for the transfer thus evidenced, and we think it gave the bank a right to the fund in controversy, as against these claimants. The defendants Wilson and Knowlton complain of the additional allowance made against them; but we cannot say that it was unwarranted, especially in view of the fact that they wholly failed to disclose the nature of their own claim to the moneys in question. The judgment should be affirmed, with costs. The order refusing to resettle the judgment is not appealable, and the appeal therefrom should therefore be dismissed, with costs.

Maoomber, J„ concurs.