Callaghan v. Rogers ( 1940 )

-Action of inter-pleader brought to determine which of two claimants was entitled to the balance of a certain fund in the hands of the plaintiff. Judgment declaring the balance of the fund to belong to defendant Rogers unanimously affirmed, with costs. There is no proof in this record that the document dated February 24, 1938, on which Rogers’ claim is founded, was not executed and delivered on that day. There is proof that it was so executed and delivered, which proof the referee was free to credit and this court may not disturb that finding. (Boyd v. Boyd, 252 N. Y. 422.) There is no proof upon which a finding might be predicated that there was an oral assignment of the balance of the fund in question to Ruskay on February 16, 1938, or on any day prior to February 25, 1938. The testimony invoked by Ruskay of the two witnesses who gave the details of the agreement of settlement of the Ruskay action discloses that there was no oral assignment, but merely an agreement to get a written assignment, which assignment was obtained on February 25, 1938. The credible evidence discloses that La Varre at no time informed his attorney or the latter’s associate that he had assigned the funds to Rogers prior to his signing the February 25, 1938, assignment to Ruskay. Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ.