Opinion
May 21, 1945.
In an action to recover money alleged to have been received by defendant on plaintiff's behalf, order of the Appellate Term affirming a judgment entered in favor of plaintiff in the Municipal Court of the City of New York, Borough of Brooklyn, and the judgment of the Municipal Court, reversed on the law and the facts, with costs in all courts, and defendant's motion for judgment on the merits granted, with costs. The evidence requires a finding that the guarantee was not assigned with the bond and mortgage when those instruments were transferred after the claim on the guarantee in suit was made and allowed. Close, P.J., Adel and Aldrich, JJ., concur; Johnston and Lewis, JJ., dissent and vote to affirm.