Blydenburgh v. Thayer

By the Court.

Davies, J.

[After stating the facts.]— Upon the facts found by the referee, it is material to inquire whether the plaintiff’s testator had a good defense to the action upon the note instituted by Foster. The interest of Foster in the note and judgment was only to the extent of the fifty dollars advanced by him to Stewart and the costs of the action. On payment of these sums to him by Stewart he was entitled to a transfer of the judgment. Stewart was, therefore, the equitable owner of the judgment, subject to the lien of Foster thereon, and his interests therein to the extent of these amounts. The referee found as a fact that the note was indorsed by Stewart to Foster “ as security for fifty dollars borrowed money.”

It then becomes necessary to inquire what were the equities between Stewart and the plaintiff’s testator. They are settled by the finding of the referee. He finds that the note was lent by Blydenburgh to Stewart for his accommodation, and that Stewart, at the time the note was given, was largely indebted to Blydenburgh for money lent and money paid to his use, and that such indebtedness still remains.

It is too clear to need argument, or illustration, or authority, that Stewart could not enforce this judgment against the estate of the plaintiff’s testator. The next inquiry is, does the defendant, who is the assignee of Stewart, of the whole judgment, except as to the amount paid to Foster, stand in any better position than Stewart F This question has been repeatedly answered by adjudication in this court. Callanan v. Edwards, 32 N. Y. 483; Bush v. Lathrop, 22 Id. 535 ; Anderson v. Nicholas, 28 Id. 600; Beebe v. Bank of N. Y., 1 Johns. 529.

These cases all affirm the doctrine -that the assignee of a chose in action, not negotiable, takes the thing assigned subject to all the rights which the debtor had acquired in respect thereto prior to the assignment. The assignee takes, subject to all existing equities, and those on the part of the plaintiff’s testator were, that the judgment could only be enforced against him to the amount due to Foster and which was 'paid to him. Nothing was done by the plaintiff or his testator which estops him from setting up these equities as against cither Foster, Stewart or the defendant. The judgment was only available in the hands-of either of them, to the extent of fifty dollars advanced by Foster and the interest thereon, and the costs of the action. On payment of these sums, the plaintiff or his testator was entitled to have the judgment canceled.

The judgment should be reserved and a new trial granted, costs to abide the event.

Bocees, J., read an opinion to the same effect.

All the judges concurred.

Judgment reversed, and new trial ordered, costs to abide the event.