-
Per Curiam: Where a promise is made to one to pay money to another, and the latter has been allowed to recover thereon, it has usually been on the theory of a quasi equitable assignment by the promisee to the party interested. As the promisee might transfer, and in some cases ought to transfer, the claim on the promise to the party in interest; therefore, it has been held, in certain cases, that the party interested may have the same rights as if the promisee had in fact transferred to him, as he ought to have done. That is to say, the party interested, when he can recover on the promise, must do so as holder of the promisee’s rights, and therefore must be subject to all the equities which exist against the promisee.
In this present case Hammell assigned the contract, really as. security for a debt, which he owed to the defendants. He retained a right to redeem. Hence the agreement by the defendants to pay was only an agreement to advance an installment on the contract, which would have to be repaid by Hammell. It could not be that, the defendants were to jiay the installment, leaving Hammell a right, to redeem, without repaying also the money which should be thus, advanced.
Allowing the plaintiff then to stand in Hammell’s place, and thus to have the benefit of the agreement, he would take only such rights as Hammell had. And these, at the best, included only a. right that the defendants should advance the installment, which advance being for Hammell’s benefit should be repaid to him by Hammell.
Thus the case is very different from one where such a contract is-assigned absolutely, and the assignee, in order to protect the assignor against future liability, promises that he will himself pay all future installments. In that case the neglect to pay would give an absolute right of action by the assignor against the. assignee, with no liability afterwards to refund. And on that, ground it has been thought equitable, that the party to whom the money is to be paid should have a right of action, as it were, by an equitable assignment thereof. (Garnsey v. Rogers, 47 N. Y., 237.)
Judgment should be ordered on the nonsuit for defendants, with, costs.
*87 Present — -Learned, P. J., Boardman and Bocees, JJ.Judgment ordered on nonsuit for defendants, and motion for new trial denied, with costs.
Document Info
Citation Numbers: 24 N.Y. Sup. Ct. 84
Judges: Boardman, Bocees, Learned
Filed Date: 1/15/1879
Precedential Status: Precedential
Modified Date: 11/12/2024