Moffatt v. Bailey

22 A.D. 632

Opinion

Per Curiam:

We are of opinion that the laintiff would have made out a good case ad he proved that the contractor who built the defendant’s house was still indebted to him (the plaintiff) for materials furnished. 'This he failed to do. To constitute an equitable assignment, a valuable consideration is essential and indispensable. (Shaw v. Tonns, 20 App. Div. 39.) The justice was, therefore, right in dismissing the complaint. The case, however, was simply one of failure of proof, and the judgment, so far as it directed that the complaint be dismissed on the merits, was improper. The judgment of the County ‘Court should he reversed, and the judgment of the Justice's Court modified by striking therefrom the direction that the complaint be dismissed on the merits, and as modified, affirmed, without costs in the County Court or of this appeal. All concurred.