Opinion
December 2, 1910.
Charles Burstein, for the appellants.
Henry H. Livingston, for the respondent.
The defendants appeal from a judgment of the Municipal Court, in an action brought upon an assigned claim, to recover for work, labor and services alleged to have been rendered by one Benjamin Gold. The defendants admitted the contract with Gold, and alleged that by reason of the service of an order in supplementary proceedings upon them in another action they were enjoined and restrained from paying any money to Benjamin Gold. Thereafter the plaintiff amended his complaint by striking therefrom the name "Benjamin Gold" wherever it occurred, and inserting in lieu thereof the name "Bella Gold," the wife of Benjamin, and filed a bill of particulars in which it is set forth that the contract was made and performed by Bella Gold. The evidence fails to establish the plaintiff's alleged cause of action. There is no proof of any assignment by Bella Gold to plaintiff. The only assignment introduced was one made by Benjamin Gold. So far as the evidence shows, the cause of action under the alleged contract is owned by Bella Gold, and the defendants' motion to dismiss should have been granted. The trial justice suggested that if Bella Gold was present at the time her husband executed the assignment and was cognizant of that fact, she would be estopped from asserting ownership of the claim. While Benjamin Gold testified that his wife was present at the office of the attorney who prepared the assignment when he executed it, she was not sworn and there is no evidence that she had any knowledge that her husband claimed to be the owner of the claim or that he intended to assign it to the plaintiff.
The mere presence of Mrs. Gold at the office where the papers were prepared and executed is not sufficient to estop her from enforcing her cause of action against the defendants, if she had one, and the assignment of a claim of her husband is no protection to the defendants against a subsequent action by Mrs. Gold.
The judgment of the Municipal Court should be reversed and a new trial ordered, costs to abide the event.
WOODWARD, BURR, THOMAS and CARR, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.