Wightman v. Wightman

173 A.D. 701, 160 N.Y.S. 75, 1916 N.Y. App. Div. LEXIS 7597

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1916
• Status: Published

Opinions

Scott, J.:

The plaintiff sues upon two assigned claims against the defendants, who are or were members of a firm doing business as Wightman & Co. The sole ground upon which the motion was granted and practically the sole ground upon which it is sought to be sustained is that the complaint does not state any cause of action.

A motion of this character does not furnish an appropriate occasion, speaking generally, to pass upon the sufficiency of a pleading. Sometimes, of course, a pleading will be found that is so obviously bad that no reasonable argument can be made in behalf of its sufficiency. In such a case it would be futile to grant an order for an examination to sustain it. Such cases, however, are rare, and in our opinion this is not one of them.

The assignments under which plaintiff sues were made by his mother, and each is of one-half 1 ‘ of all and any right, title and interest which I may now have, or which may hereafter accrue to me, in the firm of Wightman & Co.” It appears from the complaint that the only interest the assignors- had in the said firm or its assets was that they had each loaned the firm considerable sums of money which had not been paid and are still owing. The argument advanced by the respondents is that the phraseology of the assignment is not appropriate to the assignment of a claim for moneys loaned. The phraseology is certainly not apt to effect such a purpose, but we are not prepared to say upon a mere inspection of the pleading that it is not sufficient if it should be made to appear by evidence aliunde the assignment itself, that it was intended to transfer the indebtedness arising out of the loans for the question as to what is covered by the assignment is to be determined by the intention of the parties to it.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied.

Clarke, P. J., and Smith, J., concurred; MoLaughlin and Page, JJ., dissented.