Opinion
February, 1926.
Appeal from Supreme Court, New York County.
Present — Clarke, P.J., Merrell, Finch, McAvoy and Martin, JJ. Judgment modified as directed in opinion and as so modified affirmed, with costs to the plaintiff. Settle order on notice.
We conclude with the learned trial court that the proof of plaintiff establishes an assignment of the decedent Mansfield's interest to the defendant the Robert Dollar Company for collection on the decedent's account in trust to pay the sums collected to him when received; that the obligation under the assignment, however, was to pay what was received for his account, and this obligation was not discharged by making a proportional award to the Mansfield interest of the whole amount received for all the coadventurers, but which proportion was based on purely arbitrary ratios so far as evidence discloses any ground for their existence. It is, therefore, determined that the judgment of the trial court should be modified by increasing the principal sum to $97,750, the total sum due Mansfield under the proof by all the documents and received under our view for his account by the defendant, the Robert Dollar Company, when the settlement was made, and as so modified affirmed, with costs to the plaintiff.