Wightman v. Wightman , 160 N.Y.S. 75 ( 1916 )

McLaughlin, J. (dissenting):

This appeal is from an order granting a motion to vacate an examination of defendants before trial. The motion was granted upon the ground that the complaint does not state a cause of action. If this be true, then the order directing the examination was properly vacated. This is precisely what this court held in Cash v. American Specialty Tailoring Co. (157 App. Div. 729). In that case the appeal was from an order denying a motion to vacate an order for the examination of one of the officers of the defendant before trial and this court reversed the order and granted the motion, saying: “The motion to vacate should have been granted for the reason that the complaint does not state facts sufficient to constitute a cause of action.”

This action is at law to recover loans alleged to have been made to the firm of Wightman & Co. by Elizabeth Wightman and Richard Wightman, respectively. The complaint alleges that they delivered to the plaintiff written assignments of one-half of said loans, which assignments are annexed to and made a part of the complaint. An examination of those instruments shows that they do not purport to and do not actually assign any loans or any interest therein. What they do assign to the plaintiff is “ one-half * * * of all and any right, title and interest which I may now have, or which may hereafter accrue to me, in the firm of Wightman & Co.” It is an assignment of an interest in the firm and not an assignment of a cause of action against the firm.- An interest in the firm represents an asset and a loan to it is a liability of the firm. Therefore, on the face of the instruments, they do not transfer to the plaintiff any interest in a claim against the firm. If the assignments were intended to transfer a claim against the firm, then before a recovery can be had upon them, a reformation must be had. Obviously, this cannot he done in an action at law. The complaint, in my opinion, does not state a cause of action and I, therefore, dissent from the opinion of Mr. Justice Scott and vote to affirm the order appealed from.

Page, J,, concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, the date for the examination to procéed to be fixed in the order. Order to be settled on notice.