Opinion
Argued October 12, 1917
Decided November 20, 1917
L. Laflin Kellogg, Alfred C. Petté and Franklin Nevius for appellant.
Lamar Hardy, Corporation Counsel ( Terence Farley, E. Crosby Kindleberger and R. Percy Chittenden of counsel), for respondent.
This action was brought by the plaintiff as assignee to recover damages for an alleged breach of contract made by the city of New York with plaintiff's assignor. The defendant not only denied liability, but asserted a counterclaim. The case was sent to a referee who made a report in favor of the plaintiff's claim and disallowing defendant's counterclaim, and upon this report a judgment for a large sum was entered in favor of the plaintiff.
Upon the trial before the referee, in addition to other issues involving the merits of plaintiff's claim and defendant's counterclaim, there was considered the question whether there was ever executed any assignment to plaintiff, a corporation, by its alleged assignor, a copartnership having the same name, and this question of fact was, in the disposition of the case made by the referee, necessarily decided in favor of the plaintiff.
When the case reached the Appellate Division two questions were especially considered by that court. The first was the one already outlined whether any instrument purporting to transfer to the plaintiff any claim of its alleged assignor was ever executed and delivered. As appears by the prevailing opinion of the Appellate Division, it considered that the evidence tending to sustain the facts of execution and delivery of such an assignment was very unsatisfactory, and various findings of fact upon that issue by the referee were reversed, but no affirmative findings were made to the effect that no such assignment was executed and delivered. Although thus holding that the evidence tending to sustain the execution and delivery of the assignment was unsatisfactory, it was written in effect that this view would lead the court simply to grant a new trial and not to dismiss the complaint as undoubtedly would have been the proper course in the absence of affirmative findings that no assignment was made.
The other question considered by the Appellate Division was the one whether assuming that the instrument of assignment was duly executed and delivered to the plaintiff, such assignment was valid, it not having been filed in the office of the county clerk under the provisions of section 15 of the Lien Law (Cons. Laws, ch. 33), and the conclusion was reached that it was not valid without such filing. The court then stated in its opinion, in substance, that there was no possibility of additional evidence being adduced upon this subject of filing, and that, therefore, under the view entertained by that court, the complaint should be dismissed, and judgment was rendered reversing the judgment of the trial court and dismissing the complaint.
Since this decision was made it has been held by this court in Edison El. Illuminating Co. of Brooklyn v. Frick Co. ( 221 N.Y. 1) that the provisions of the section of the Lien Law already referred to do not apply to this assignment, and that it was not invalidated by failure to file in the clerk's office.
We, therefore, have it that the view of the Appellate Division upon the decisive question of law which influenced it to dismiss the complaint was erroneous, and that its conclusion that the findings of fact upon the other question, whether an assignment was executed, were against the weight of evidence would and should have led it to grant a new trial and not to dismiss the complaint.
Under these conditions, therefore, the judgment of the Appellate Division should be so modified as to grant a new trial instead of dismissing the complaint, and as so modified judgment affirmed, with costs in this court and in the Appellate Division to abide event.
CHASE, CUDDEBACK, HOGAN, POUND and ANDREWS, JJ., concur; McLAUGHLIN, J., not sitting.
Judgment accordingly.