Moffatt v. Bailey

We are of opinion that the plaintiff would have made out a good case had he proved that the contractor who built the defendant’s house was still indebted to him (the plaintiff) for materials furnished. This he failed to do. To constitute an equitable assignment, a valuable consideration is essential and indispensable. Shaw v. Tonns, 20 App. Div. 39, 46 N. Y. Supp. 545. The justice was therefore right in dismissing the complaint. The case, however, was simply one of failure. of proof, and the judgment, so far as it directed that the complaint be dismissed on the merits, was improper.

The judgment of the county court should be reversed, and the judgment of the justice’s court modified by striking therefrom the direction that the complaint be dismissed on the merits, and as modified affirmed, without costs in the county court or of this appeal.