Levine v. Lubow

48 N.Y.S. 145

Opinion

DALY, P. J.

We think that Baumann v. Jefferson, 4 Misc. Rep. 147, 23 N. Y. Supp. 685, is decisive of this case, because the facts were the same. The demand in that case was made by the assignor, and that was held to entitle the assignee of the cause of action to recover the damages which the assignor would have been entitled to. Judge McADAM suggests very pertinently that the reason of the Baumann decision was this: The making of the assignment was an election by the assignor to abandon the property to the wrongdoer, leaving the assignee the owner of nothing but the cause of action for damages. That being the case, the title to the property did not pass to the assignee, but only a cause of action for its conversion, and the assignee could not legally demand the property. He took the cause of action for damages; nothing else.

We will have to reverse.' Á new trial will be ordered in this case.