Saxl v. Kinkade

125 N.Y.S. 442

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 11, 1910
• Status: Published

Opinion

BIJUR, J.

Plaintiff. is the assignee of one Springer, the intermediate assignee of the Empire State Garage, where defendant stored his automobile. The action is for storage and repairs from December, 1909, to March, 1910.

Springer testified that “in September, 1909, all the open accounts on the books” of the garage were assigned to him, and, again, that in September, 1909, “all the general accounts receivable were assigned” by resolution, but he did not know whether or not any other accounts were assigned after 1909. Defendant moved to dismiss, on the ground that the plaintiff had not made out a case, and pointed to the evidence that the assignment was made before the cause of action arose. The court refused to grant the motion, saying:

"No; he testified that they assigned all open accounts.”

As the exact terms of the assignment are not in evidence, andl as it does not appear how, under the testimony given, the claim in suit has been assigned to this plaintiff, the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.