Opinion
December, 1932.
Judgment modified by incorporating therein the provision that the complaint is dismissed without prejudice, and as so modified the judgment is affirmed, with costs. We are of opinion that the assignment was valid in form, and except for the reason hereinafter stated, that the plaintiff had the right to recover the chattels. ( Cummings v. Morris, 25 N.Y. 625; Eaton v. Alger, 47 id. 345; Hoppe v. Russo-Asiatic Bank, 200 App. Div. 460, 465; Delahunt v. AEtna Ins. Co., 97 N.Y. 537, 544.) Further, that it was within the power of the court to authorize the assignment of the conditional bill of sale, the property therein mentioned, and the notes and money due or to become due; but that the assignment was not authorized by the order of July 9, 1930, and that the order of April 25, 1932, could not give validity and establish title in the plaintiff as to the action theretofore commenced. Therefore, plaintiff had no valid title at the time he sought to recover the property, and was not entitled to maintain the action. ( Import Chemical Co. v. Forster Gregory, Ltd., 172 App. Div. 406.) Lazansky, P.J., Kapper, Carswell and Davis, JJ., concur; Hagarty, J., dissents and votes to affirm without modification.