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he had no valid claim for reimbursement from the funds so in his hands.

(2, 3] The learned counsel for the respondent contends that the complaint was properly dismissed, for the reason that the moneys in the hands of his client were collected on accounts owing to the Hofferberth-Troy Company, and that no assignment thereof, either legal or equitable, was pleaded. That contention was made on the trial, and overruled, on the ground that, in an action for money had and received to the use of the plaintiff, it is unnecessary for the plaintiff to allege the source of his title, or the facts or circumstances out of which the indebtedness to him arose. That was the rule at common law, and I think it still obtains. See National Trust Co. v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632, Chapman v. Forbes, 123 N. Y. 532, 537, 26 N. E. 3, Roberts v. Ely, 113 N. Y. 128, 20 N. E. 606, and People v. Ingersoll, 58 N. Y. 1, 17 Am. Rep. 178. On the plaintiff's theory of the action, his

company never owned the cause of action which he is here prosecuting. The moneys had not been collected by defendant then, and he was not accountable therefor to the company, and before the collections were made the company had for a valuable consideration, in effect, assigned the moneys, when collected by the defendant, its agent, to the plaintiff. Such an assignment is valid, and takes effect upon the fund or property when collected or received. Williams v. Ingersoll, 89 N. Y. 508.

The learned counsel for the appellant contends that the evidence which was offered and received in behalf of his client established an equitable assignment to him of the surplus moneys received from the operation of the steamer, over and above the expenses which the defendant was authorized to deduct; and he further contends that, if the evidence so received was insufficient for that purpose, the court erred in excluding other competent evidence offered to show an equitable assignment. These contentions will now be considered separately.

(4-6) First. I am of opinion that the evidence sufficiently shows an equitable assignment. So far as appears, the Hofferberth-Troy Company is asserting no claim to these moneys; and it acquiesced in, if it did not formally approve, the verbal agreement made between the members of its board of directors and the plaintiff by which all moneys collected from the operation of the steamer in excess of expenses should be turned over to him, and in the written direction to the defendant to transmit such moneys direct to the plaintiff individually. Its board of directors by formal resolution, reciting adequate consideration, directed that all moneys collected from any outstanding indebtedness to the company should be applied in payment of the money borrowed for the company by the plaintiff and should be retained by him. The resolution of the board of directors of the company, which was adopted long after the written direction to the defendant to remit the moneys to the plaintiff, should be construed in connection with such written direction, and means, I think, that those moneys which the company had theretofore directed the defendant to pay over to the plaintiff should be retained by the plaintiff and applied on the company's indebtedness to him. It is essential that there shall be a

consideration for an equitable assignment; but there was abundant consideration here. It is well settled that either a written or parol equitable assignment of a debt, claim, or chose in action, if founded on a good consideration, is valid and enforceable, and that no particular form of words is necessary to constitute such an assignment, but that any words will suffice which show an intention to transfer the debt, claim, or chose in action. Williams v. Ingersoll, 89 N. Y. 508; White v. Hoyt, 73 N. Y. 505; Brill v. Tuttle, 81 N. Y. 454, 37 Am. Rep. 515; Fairbanks v. Sargent, 117 N. Y. 320, 22 N. E. 1039, 6 L. R. A. 475; York v. Conde, 61 Hun, 26; Rupp v. Blanchard, 34 Barb. 627, 629; Muir v. Schenck, 3 Hill, 228, 38 Am. Dec. 633; 1 Cyc. 834. There can be no doubt but that a parol assignment can be made by the members of a board of directors of a business corporation, for a sufficient consideration moving to it, which, when acquiesced in, as is shown here, by the corporation, and in effect ratified, for the ratification should not be confined to the mere advancement of the money, but should be held to embrace the arrangement under which the advances were made, will be enforced by a court of equity. See Melledge v. Boston Iron Co., 5 Cush. (Mass.) 158, 51 Am. Dec. 59; Groh's Sons v. Groh, 80 App. Div. 85, 80 N. Y. Supp. 438. The point presented for decision is: Did the company intend that these moneys when collected, should belong to the plaintiff, or did it merely promise to reimburse him when it collected the accounts ?

[7] I am of opinion that the plaintiff's company intended that these moneys as soon as collected should belong to him. If there be any ambiguity with respect to the formal action of the board of directors, it should be resolved in the light of the former written direction to the defendant to pay the moneys over to the plaintiff as he had done in other instances. There is no better rule for resolving any doubt with respect to what was intended than to show what was done and acquiesced in as what was intended. See Williams v. Ingersoll, supra; Nicoll v. Sands, 131 N. Y. 19, 24, 29 N. E. 818; Insurance Co. v. Dutcher, 95 U. S. 269, 24 L. Ed. 410. The defendant understood the agreement as the company and plaintiff intended, as is shown by his prior action in accounting to the plaintiff, and by his final letter to the plaintiff, to which reference has been made, in which he credited plaintiff with the moneys, but asserted offsets. The undertaking of the Hofferberth-Troy Company with the plaintiff was not to reimburse him when these moneys were collected, but that the moneys should be his when collected. The plaintiff does not claim that the accounts were assigned to him, although that was urged on the trial. He now contends that it was intended that the moneys when collected should belong to him. The claims, therefore, were to be collected by the defendant as the agent of the company; but he collected them with full knowledge that the surplus moneys, when collected by him, belonged to the plaintiff. 'It was therefore his duty, on receiving notice of this agreement between the plaintiff and the board of directors, and the formal written direction, to pay the money over to the plaintiff. See Brill v. Tuttle, 81 N. Y. 454, 37 Am. Rep. 515. In effect the claims in the hands of defendant for collection were impressed with a trust

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in favor of plaintiff, which made it the duty of the defendant to pay over to the plaintiff the surplus of the moneys collected after deducting the expenses of operating the steamer. Matter of Carpenter, 131 N. Y. 86, 29 N. E. 1005; Hoffman House v. Fort, 172 N. Y. 348-358, 65 N. E. 169.

[8] Second. No question asked of the plaintiff, as a witness for himself, with respect to his agreement or arrangement with the board of directors of his company, was excluded; but after he had testified, and introduced the resolution of the board of directors, the material parts of which have been stated, he called two directors of the company, and questioned them, for the purpose of showing that prior to the adoption of said resolution of the board of directors there were conversations between the members of the board of directors and the plaintiff, by which it was understood and agreed that the plaintiff was to advance money for the running expenses of the company, and that the freights earned by the steamer were to be paid to him, and that he was to have the right to collect the freight money, and that there was in effect an oral assignment to him of the claims for moneys earned by the steamer. Counsel for the plaintiff contended, in support of the evidence thus offered, that it was the intention of the board of directors in adopting the resolution to approve the oral agreement, arrangement, and assignment theretofore made between the members of the board and the plaintiff. All questions on this subject, calling for conversations between the directors themselves, and between them and the plaintiff, concerning these claims and the collection thereof, and with respect to who was to collect them and retain the money, were objected to, and the objections were sustained; and the plaintiff excepted.

I am of opinion that the evidence so excluded was competent, and should have been received. If it had been received, it might have been more than cumulative, and might have shown more fully than plaintiff's testimony that there was a verbal understanding and agreement between the plaintiff and the directors by which he was to advance the money necessary for the running expenses of the company, and in consideration therefor was to collect and apply on account of such advances the moneys earned by the steamer. If that had been shown, it could be argued with greater force that the effect of the resolutions was to ratify that arrangement; for, although the resolutions contain no express recital of such an agreement, they expressly ratify plaintiff's action in retaining and crediting, on account of his advances, moneys received from the sale of lumber and timber, and the resolution with respect to the application, in payment of money borrowed by the plaintiff, of any moneys collected from outstanding indebtedness, and with respect to such moneys being retained by him, which is somewhat indefinite, if not ambiguous, would have thereby been rendered clear.

It follows that the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. Order filed. All concur.

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DAVIDSON V. REAM. (Supreme Court, Special Term, Albany County. December 22, 1916.) DISMISSAL AND NONSUIT M18-DISCONTINUANCE-RIGHT TO.

Plaintiff secured a judgment annulling a marriage ceremony performed between plaintiff and defendant, under which judgment there had been paid for claims by plaintiff a large sum of money. Thereafter defendant moved to set aside the judgment on the ground of want of jurisdiction and for conspiracy and fraud, and from an order denying the motion appealed, whereupon plaintiff obtained, ex parte and without knowledge of defendant, an order of discontinuance. Held that, as an order of discontinuance stops all further proceedings in the action, and would render defendant's appeal unavailing, plaintiff was not, defendant having a substantial right, and plaintiff securing an advantage thereby, entitled to an order discontinuing the action.

[Ed. Note.--For other cases, see Dismissal and Nonsust, Cent. Dig. $ 32; Dec. Dig. 18.]




Action by Eleanor D. Davidson against Louis M. Ream. On motion by defendant, under order to show cause, for an order setting aside an order of discontinuance granted on motion of plaintiff. Motion granted, and order entered setting aside order of discontinuance.

See, also, 97 Misc. Rep. 89, 161 N. Y. Supp. 73.
Edgar T. Brackett, of Saratoga Springs, for plaintiff.

Arthur L. Andrews, of Albany (Lindley M. Garrison, of New York
City, of counsel), for defendant.

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RUDD, J. The defendant moves, under an order to show cause granted by Mr. Justice Chester, for an order setting aside an order of discontinuance granted by Mr. Justice Chester at Special Term November 10, 1916. The defendant appears without prejudice to his special appearance herein.

There is no dispute as to facts. The question is: Shall the order of the Special Term, granted by Mr. Justice Chester ex parte, discontinuing this action, be vacated? The order of discontinuance, made November 10, 1916, was made on the affidavit of Hon. Edgar T. Brackett, and the substantial part of the order reads as follows:

"Ordered, that the above-entitled action be and the same is hereby discontinued, on payment of costs by the plaintiff, if any shall be allowed by the court; such action being one in equity."

The affidavit upon which the order was made shows that Hon. Edgar T. Brackett had been substituted in place of Shaw, Bailey & Murphy as attorney for the plaintiff; that judgment had been entered herein January 16, 1912, in Rensselaer county, annulling the marriage of the plaintiff to the defendant, or declaring the same invalid; that an order had been entered in Rensselaer county, vacating and declaring null and void the said judgment annulling the marriage between plaintiff and the defendant, and that said order annulling the judgment had left this action still pending; that the plaintiff desired to discontinue the same, and asks for an order of discontinuance; and that no previous application for such order had been made to deponent's

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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knowledge. Upon such an affidavit, and upon an ex parte application, the Special Term was justified in granting the order of discontinuance.

Upon the motion here made a somewhat different state of facts is developed. It now appears that under the judgment entered in January, 1912, declaring void and of no effect the ceremony of marriage performed between the plaintiff and defendant in the state of New Jersey on September 1, 1911, there had been paid for claims by the plaintiff against the defendant for breach of promise to marry, support, and maintain the defendant, and for her counsel fees, the sum of $38,000; that this judgment annulling the marriage remained in full force until a motion was made at the Saratoga Special Term in March, 1916, to set aside the judgment on the ground of want of jurisdiction, and for conspiracy and fraud alleged to have been practiced by the defendant against the plaintiff; that in April, 1916, the defendant appeared specially to deny the jurisdiction of the court, and moved to set aside the service of the papers as having been improperly made. This motion to set aside the service was denied, and from the order entered thereon the defendant appealed to the Appellate Division in this department, which appeal was argued at the November term, and is now undetermined.

Plaintiff's motion to vacate the judgment, entered in Rensselaer county, declaring null the marriage between these parties, was granted at a Special Term in Saratoga county by Mr. Justice Borst. An order, in accordance with the findings of the Special Term, was entered, and resetttlement of the order was noticed for November 13, 1916. On November 10, 1916, the plaintiff obtained, ex parte and without the knowledge of the defendant or his counsel, the order of discontinuance which is here the subject of consideration. The defendant appealed on November 22, 1916, to the Appellate Division from the order, as resettled, vacating the judgment annulling the marriage, which appeal is now pending and will be argued, as defendant states, at the January term of the Appellate Division, to be held within a few weeks.

This action is in equity. Every feature of it and every phase of it should be governed and controlled by equitable principles. Neither party should be given an advantage over the other, except the advantage to which the party is legally and equitably entitled. Whether the order of the Special Term setting aside the judgment of annulment is correct or not is not for this court to determine. The review of that order is in the Appellate Division, not here. The simple question presented to this court is: Should an action in equity be discontinued because one party makes an application for an order of discontinuance, irrespective of the rights, substantial or otherwise, of the other party to the action?

There seems to be little doubt but what the practice is well established that an order discontinuing an action ends the action and stops all further proceedings in the action. If the action is discontinued, there is nothing more to be said or done. An appeal could not be presented to the Appellate Division for argument in an action which no longer existed. Courts are quite busy enough with live issues, without being called upon to dispose of questions in cases which by an order of the

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