
    POTTIER AND STYMUS MANUFACTURING COMPANY, Respondent v. AUGUSTE NOEL, Appellant.
    
      Counterclaim,—Assignment, written or oral, and in the latter case whether what was said amounts to an assignment depends upon the intention of the parties and what was done by them in further anee of such intent.
    
    In this case the counterclaim and its assignment were both put in issue by the reply. The referee before whom the case was tried, refused to find, as matter of fact, that any assignment had been made as alleged in the answer. This was tantamount to an affirmative finding that no transfer was ever made in fact, and if there was no assignment the claim or demand could hot be used or considered as a counterclaim.
    In this case, whether the transaction be called a gift, sale, assignment or transfer, it is not evidenced by any symbolical or constructive delivery of anything, nor by any unequivocal act of the parties. The alleged assignee merely said to the alleged assignor “ that he would transfer the indebtedness over,” the amount was not stated, although the claim as one against the plaintiff was mentioned, and there was not even a charging up of the account sought to be transferred in any way. Held, that the evidence under any interpretation does not establish an assignment sufficient to pass the title. The element of “ intent ” runs all through the cases, and this is generally a question of fact, and the referee has decided it adversely to the defendant, and the judgment appealed from must be affirmed.
    Before Freedman, P. J., McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    Appeal by defendant from judgment entered on report of referee in favor of the plaintiff.
    
      Abram Kling, attorney and of counsel, for appellant.
    
      
      Charles M. Hall, attorney, and Truax & Crandall and Elbert Crandall of counsel, for respondent.
   By the Court.—McAdam, J.

The answer admitted the cause of action, and pleaded a counterclaim of $803.06 in favor of A. Noel & Son (a copartnership firm composed of the defendant and his son), under a transfer alleged to have been made by that firm to the defendant before the commencément of the action. The reply put in issue both the counterclaim and assignment. The referee, although requested by the defendant, refused to find as matter of fact, that any assignment had been made as alleged. This is tantamount to an affirmative finding that no transfer was ever made in fact. If this finding is justified by the evidence, it becomes unnecessary to consider any of the other questions in the case, because if there was no assignment, the joint demand in favor of the firm of A. Noel & Son could not be used as a counterclaim to an action against A. Noel, individually. Hopkins v. Lane, 87 N. Y., 501; Code, § 501. The assignment was oral, not in writing, and in such a case whether what was said amounts to an assignment depends upon the intention of the parties and what was done by them in furtherance of such intent. In Sheridan v. The Mayor, etc., 68 N. Y., 30, the assignment was in writing, duly executed and acknowledged; hence that case is not applicable. The owner of a cause of action may give it away, and the assignee is entitled to judgment thereon. Mills v. Fox, 4 E. D. Smith, 220; Beach v. Raymond, 2 Ib., 496; Richardson v. Mead, 27 Barb., 173; Burtnett v. Gwynne, 2 Abb., 79. In those cases, as in the Sheridan case, formal transfers sufficient to pass title were executed, and the court held the consideration therefor immaterial. Notes not negotiable have been held to pass by delivery where there was an intention to part with the title. Judgments and accounts have been transferred by delivery of the transcript, or bill of items, where an absolute transfer was intended, i and so in many other cases effect has been given tosymbolical deliveries, and to unequivocal acts evidencing an intention to pass title. But in this case there was no delivery of anything. Indeed there was not even a charging up of the account against the partner receiving the transfer. Vail v. Tuthill, 10 Hun, 31. Here, the transaction whether it be called a gift, sale, assignment or transfer, is not evidenced by any symbolical or constructive delivery or by any unequivocal act of the parties. In this instance, the alleged assignee merely said to the assignor, in substance, that he would transfer the indebtedness over; ” the amount was not stated, but that the claim against the plaintiff was mentioned (see fols. 190 to 197). The evidence technically construed would indicate a purpose on the part of the defendant to transfer to the son, rather than an intent on the part of the latter to transfer to the former; but no matter which way it is interpreted, it does not establish an assignment sufficient to pass title. The element of intent ” runs all through the cases, and this is generally a question of fact, Ram on Facts, 1st Am. ed., pp. 1, 275; Benjamin on Sales, § 309, and the referee has decided it adversely to the defendant, on the evidence of the assignor, a relative and interested party, whom he was not bound to believe. Kavanagh v. Wilson, 70 N. Y., 177. For the reasons stated, the judgment appealed-from must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.  