
    McKee against Judd.
    A right of action for the wrongful taking ana conversion of personal property is assignable; and under the provisions of the Code of Procedure the assignee can recover upon the same in his own name.
    An assignment by a person of all his property and estate, transfers a right of action existing in his favor for the tortious conversion of personal property.
    Action commenced in the supreme court the 28th of July, 1851. The complaint alleged that on the 7th of August, 1850, one Meritt was the owner of a horse and peddler’s wagon, and a quantity of goods contained in boxes in the wagon; and that on the day last named the defendant took the horse, wagon and goods from the possession of Meritt, and sold, disposed of and converted the goods, to the value of eighty dollars, to his own use; and that he kept and detained the horse and wagon for several days, to the damage of the plaintiff of twenty dollars, and then returned them to him. The complaint further stated that on the 1st day of November, 1850, Meritt, “for a valuable consideration, by an instrument in writing under his hand and seal, sold, transferred and assigned his claim and demand against the defendant for said taking and detention of said horse and wagon, and the taking and converting of said goods to the plaintiff, who is now the owner of said demand.” The complaint demanded judgment against the defendant on account of the premises for $100, and interest from the 7th of August, 1850.
    The defendant, by his answer, denied each and every allegation contained in the complaint. He further denied that Meritt had any assignable claim or demand against the defendant, or that he did assign or transfer any cause of action against the defendant to the plaintiff; and insisted that the plaintiff was not entitled to maintain the action. The answer also alleged that the property in question belonged to one Barnes in whose possession it was; that it was seized and taken by virtue of an attachment issued by a justice of the peace in favor of the defendant against Barnes, and that the goods, which were sold, were sold by virtue of an execution issued upon a judgment for about $70, recovered against Barnes in the suit commenced by the attachment and to satisfy the same; and that thereupon the residue of the property was returned to Barnes. There was a reply taking issue upon the allegations of new matter in the answer.
    
      The cause was tried in October, 1852, at the Broome county circuit before Mr. Justice Gray. The plaintiff- gave evidence tending to prove that in August, 1850, the horse, wagon and goods were owned by Meritt, and were in the possession of one Barnes only as his agent to sell the goods. It was further proved, that in the month last named- a constable, by virtue of an attachment against Barnes and by the direction of the defendant, seized the property and detained it until he sold, a few days afterwards, sufficient of the goods to satisfy an execution issued against Barnes upon a judgment recovered in the suit commenced by the attachment, when he restored the horse and wagon and the residue of the goods to Barnes. The plaintiff" read in evidence an instrument, dated the 1st day of November, 1850, executed by Meritt, whereby he assigned, conveyed, granted, sold, transferred and set over unto the plaintiff all his property and estate of every name, kind, nature and description, in trust, to convert the same into money and apply the same to the payment of his, Meritt’s, debts in the order of preference specified therein. It was proved that the goods sold by the direction of the defendant were worth from $75 to $80.
    At the close of the evidence the counsel for the defendant insisted that the plaintiff was not entitled to recover, and requested the court to nonsuit him on the grounds: 1st. That the action was for a tort or wrong alleged and proved to have been committed before the assignment to the plaintiff, and that the cause of action therefor was not assignable ; 2d. That there had been no demand of the property from the defendant by the plaintiff and no refusal by the former to deliver it to him. The court overruled said several objections and declined to nonsuit the plaintiff, and the counsel for the defendant excepted. The court further ruled and decided that if the jury found that the property belonged to Meritt, at the time it was taken and sold by the direction of the defendant, the plaintiff was entitled to recover. To this the counsel for the defendant excepted. There were some other questions in the case arising on. the exclusion and admission of evidence, but they are not of general interest. The jury rendered a verdict in favor of the plaintiff for $86 damages, upon which judgment was rendered. The judgment was affirmed at a general term of the supreme court in the 6th district. The defendant appealed to this court.
    
      D. S. Dickinson, for the appellant.
    
      G. W. Hotchkiss, for the respondent.
   Gardiner, Ch. J.

The action was not brought to reclaim the property taken by the defendant, or its proceeds, but to enforce the claim and demand accruing originally to Meritt, for the unlawful detention and conversion of the goods in controversy.

Whether this cause of action was assignable, so as to enable the plaintiff to sustain the suit in his own name, is the only important question now presented. The learned judge, who delivered the opinion of the supreme court, was correct in saying that the terms of the deed were sufficiently comprehensive to embrace all the property of the assignor, and all the rights thereto appertaining. If a demand arising for a tortious conversion is assignable, I entertain no doubt that it passed by this conveyance. In The People v. Tioga Common Pleas (19 Wend., 73), this subject was discussed by Judge Cowen with his usual learning and ability ; he observes, in speaking of choses in action : “ That for the purposes of any sort of' assignment, legal or equitable, I can nowhere find that the term has ever been, carried beyond a claim due either on contract, or such whereby some special damage has arisen to the estate of the assignor.” And Ms conclusion is, that demands arising from injuries, strictly personal, whether arising upon tort or contract, are not assignable, but that all others are. Upon the authority and reasoning of that case, and the decisions there referred to, the law may be considered as settled, that a claim to damage arising from the wrongful conversion of personal property is a chose in action that is assignable; and as such, was transferred by the trust deed to the plaintiff. In the present supreme court there is a conflict of opinion. Judge Harris and his associates concurring in the views of Judge Cowen, and Judge Brown holding that a demand of that nature is not the subject of assignment. (7 Howard, 492; 18 Barbour, 500.) If the demand was assignable, the action was properly brought in the name of the plaintiff, who had the exclusive right to recover the damages for the purposes of the trust. (Code, §§ 111, 113.) Ho demand or refusal was necessary to maintain the action. By the assignment the plaintiff succeeded to all the rights of the assignor; this is a necessary consequence of the assignability of the claim, as distinguished from the property converted. (1 Selden, 344.)

The judgment of the supreme court should be affirmed.

Denio, Johnson, Dean and Crippen, Js., concurred. Ruggles, J., took no part in the decision.

Hand, J. (Dissenting.)

This action is for taking and converting the personal property of one Meritt. Admitting that the assignment by the latter was a valid transfer of his choses in action and other personal effects that were assignable, the principal question in the case is: Did the assignment in this case transfer a right of action for taking and converting personal property ? The goods were sold on an execution in favor of defendant, and by his direction. But there was no proof that defendant himself took the goods before or after the sale, or converted them, except by directing them to be sold upon the executions; a id the assignment was made nearly three months afterwards. The taking and conversion were therefore complete at the time the assignment was made, and the defendant then had no interest in or control over the property.

I had supposed that a mere right of action for a tort could not be assigned, either at law or in equity, except by means'of some statutory proceedings. (Gardner v. Adams, 12 Wend., 297; People v. Tioga Common Pleas, 19 id., 76; Thurman v. Wells, 18 Barb., 500; 2 Stor. Eq., §§ 1039, 1040, g, 1048; Hall v. Robinson, 2 Comst., 293; 1 Font., 213, n. g; Willard's Eq., 462.) A cause of action arising from a tortious act will sometimes pass to the assignees of an insolvent, or to the assignees in bankruptcy. In those cases, there can be no objection on the ground of champerty and maintenance ; and the criterion is whether the action is to recover damages for an injury to the property of the insolvent or bankrupt, or for a wrong personal to him. A solatium for an injury done to the person or personal feelings of the debtor cannot be assigned. But if the substantial cause of action arises from an act that diminishes or impairs his property, it passes to the assignees. (Roseboom v. Mosher, 2 Den., 67, Bronson, C. J.; Beckham v. Drake, 2 H. L. Ca., 577; S. C., 11 M. & W., 315; 8 id., 846; Rogers v. Spence, 12 Cl. & Fin., 700; S. C., 13 M. & W., 571; 11 id., 191; Wetherell v. Julius, 10 Com. B., 267; Stanton v. Collier, 3 Ell. & Bl., 274; Milnor v. Metz, 16 Pet. R., 221; and see Gillet v. Fairchild, 4 Den., 80.) The transfer in such cases is in compliance with a statute, and is generally in invitum. But where the act is done on the mere motion of the parties, the assignment of a bare right to bring an action for a mere tort has been considered void on the ground" of public policy. There is nothing in the Code which abrogates this salutary principle; indeed the question is one of right or title and not of remedy.

There are other questions in the case; but on the objection already noticed, the judgment should be reversed.

Marvin, J., concurred in the foregoing opinion delivered by Judge Hand.

Judgment affirmed.  