LOTT, Ch. C.

It is unnecessary to consider the effect of the order made by Justice Ingraham, directing the defendant in this action to pay the amount of his indebtedness to Acker over to Thomas and William Ryer, his judgment creditors. The plaintiff has failed to establish any right to that sum, and therefore his recovery of it was erroneous. His own testimony clearly established the fact that the assignment under which he claimed his title was not delivered to Lynch, the plaintiff.

He did, it is true, in answer to the question by his counsel, whether the signature to the assignment was his, say that it was; that it was executed in New York on March 5; that he went before a notary and executed it on that day; and he afterward stated that the assignment was executed early in the morning, about nine o'clock; but his cross-examination disclosed the fact that he did not see Lynch, the plaintiff, and that no one was present on his behalf, either at the time the assignment was signed or when it was acknowledged before the notary. He said, on his direct examination, in addition to what he testified, as above stated, in relation to the execution of the assignment, that he, at that time, resided in Syracuse, and that he had come to New York the night before the 5th of March "on some private matters, and to see about this claim," and that he left, on his return to Syracuse, "about noon, eleven o'clock," of the 5th of March, and reached there that night about eight.

On his cross-examination he said that he "got to the city of New York on the morning of the fifth of March, and was there three or four hours;" that the private matters which he had come down about related to his mother's affairs, and also to his own; that Mr. Marcou, his attorney at the time, was one of the persons he saw in reference to them; and on being asked whether he could recollect of seeing anybody else, he answered, "no special persons," and afterward in answer to a question, whether he remembered that he saw anybody else on business which brought him to New York, but Mr. Marcou, he said "I think not." He then, after stating that his business with Mr. Marcou "was in relation to this claim against Mr. Johnson," "to try and collect it;" on being asked whether he made any effort to collect it, he answered, "nothing more than what I had to do with Mr. Marcou."

After stating that he had made an effort with him to collect it, he was asked, what was the effort he made; he answered: "I stated to Mr. Marcou the facts in the case, and he advised me to make an assignment." He then, on being asked the question, "that is the effort you made to collect it, by making an assignment?" answered, "yes, sir." He was then asked, if he could remember anybody but Mr. Marcou, whom he saw at that time, whom he knew, and his answer was, "I don't know as I can," and to the question, "You can't recollect anybody whom you saw, whose name you recollect but Mr. Marcou?" He answered: "Not positively; I can't." And after stating that the sheriff served the papers on him, in the proceedings for the examination of Johnson, about the middle of the day, or the next day after he got home, he was asked this question: "Will you swear positively that it was on the fifth of March on which you executed this assignment?" He answered: "I will swear positively, that to the best of my recollection it was."

He was then asked by the court, "Had you left that in his hands for collection previous to the execution of the assignment?" And he said in reply, "I had written to Mr. Marcou about it."

He was then further examined on behalf of the plaintiff, and stated that Mr. Marcou was attending to a real estate suit then pending, in which his mother was interested, and which he had for more than two years been conducting, and that he went to see him about that suit, at the same time he saw him relative to his claim against Johnson. He also stated, in answer to different questions, that Lynch, the plaintiff, was his brother-in-law, to whom he owed money; that he could not recollect how much, but he thought it was nearly $100, and that it was on that account the assignment was made to him.

Neither Lynch, the plaintiff, nor Mr. Marcou were examined, and no other evidence than I have above referred to was given in relation to the execution of the assignment. That does not warrant the inference that it was ever delivered to or accepted by Lynch, the plaintiff, or that it ever in fact came to his possession, or even his knowledge.

No presumption of such possession or knowledge can, under the circumstances disclosed on the trial, be drawn from its production at that time. It does not appear that the plaintiff was present. Mr. Marcou was his attorney on the record. The complaint is signed by him, and not by the plaintiff, and it is not verified by either of them or by any other person. These facts, in connection with Acker's testimony that the effort he made to collect the claim was by making the assignment under the advice of Mr. Marcou, to whom he had stated the facts, and in answer to a question by the court that he had written to Mr. Marcou about its collection, tend to show that Mr. Marcou was in fact his attorney and counsel, and not of Lynch, in this action. At all events, I find nothing to justify the conclusion that the assignment was ever delivered to Lynch or to any other person for him, and the judge erred in submitting the question to the jury.

The verdict was without evidence to support it, and the judgment entered thereon and the order made at Special Term denying a new trial were properly reversed.

It follows that the order of reversal granting a new trial must be affirmed, with costs and judgment absolute, must be rendered against the appellant with costs.