Rupp v. Blanchard

34 Barb. 627, 1861 N.Y. App. Div. LEXIS 56

Opinion

By the Court, Clerke, P. J.

Although there may be an assignment of a chose in action by parol, yet to constitute such an assignment, it must be shown that the owner surrendered all control over it, and had made an absolute appropriation of it. And where a debtor agrees to assign to his creditor a claim which he has against another, in order to make it a valid assignment, the creditor must relinquish Ms claim against the owner of the chose in action. Otherwise i the agreement is without consideration, and cannot be con-j strued even into an equitable assignment of the claim. Ini this case the referee expressly finds, as a matter of fact, that “ at the time of such agreement being made, the plaintiff parted with no value on account thereof, nor relinquished any right upon the judgment he held against Lawson & Carll.” We see no reason whatever to disturb tMs finding. The referee was, therefore, right in finding from tMs fact, as a matter of law, that the plaintiff was not the owner of the indebtedness against the defendant. It is unnecessary to consider the other questions.

Judgment should be affirmed with costs.

Clerke, Leonard and Barnard, Justices.]