Rubens v. Osfer

The pleadings are oral. The plaintiff sues, as assignee of the claim of one Miller against defendant for work, labor and services. The answer is a general denial. The facts as claimed by defendant are substantially as follows, viz.: The defendant was in partnership with his brother and one Titchenor, and, wishing to sell his one-third interest in the business, he engaged Miller, plaintiff’s assignor, to find him a purchaser. Miller sent him one Smith, who would buy the defendant’s one-third interest. Defendant’s partner Titchenor, however, objected to the substitution of Smith for defendant as a partner.- The defendant then told Miller he would give him $200 if he would procure the consent of Titchenor. Miller suggested that one Bernstein would be more likely to reach Titchenor than he, Miller, was. Defendant then said that Miller could engage Bernstein’s assistance, and pay him $100 out of the $200 that defendant was to pay Miller. This was agreed to, and Miller and Bernstein secured the consent of Titchenor. There is considerable dispute as to the facts, but enough appears from the testimony to warrant the justice in finding the preponderance of proof to be with the plaintiff.

*784The defendant claims that plaintiff’s title to the claim is defective. It will be remembered that the pleadings were oral, which accounts for the assignment of the claim not being set forth in the complaint. In the plaintiff’s bill of particulars, however, it is set forth. Also the testimony of Miller at the trial shows that he assigned the claim to the plaintiff. This is sufficient to protect defendant from another suit on the same claim by Miller.. However, it is pointed out that Bernstein asserts that he claims one-half of the $200 involved in the suit, and that there is no evidence of any assignment by Bernstein to the plaintiff. But the nature of Bernstein’s claim is very clearly set forth in the testimony. Defendant was to pay Miller $200, out of which Bernstein was to receive from Miller $100. Plaintiff has been substituted in place of Miller, and Bernstein must look to plaintiff, and not to defendant, for his half interest in the $200 here sued for. The defendant will be entirely protected from the claims both of Miller and of Bernstein, without any assignment of the latter to the plaintiff, if, under the judgment in this action, he pays the $200 to the plaintiff.

So far as the exceptions to the rulings of the justice are concerned, it will be remembered that the case was tried without a jury, and we do not think the alleged errors are of sufficient magnitude to warrant reversal

As the other causes of action originally sued upon were abandoned' at the trial, we have not considered them or the testimony introduced in support of them. We have confined ourselves entirely to the cause of action upon which the judgment was rendered.

The judgment is affirmed with costs.

Freedman, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.