
    SUPREME COURT—APP. DIV.—SECOND DEPT.,
    June 7, 1912.
    THE PEOPLE ex rel. SUTTON v. MOSES J. HARRIS.
    (151 App. Div. 461)
    Habeas corpus*—Facts not justifying imprisonment—Assignment of INTEREST IN ESTATE.
    Habeas corpus to obtain, the discharge of one imprisoned on the charge of grand larceny by making an assignment of his interest in an estate at a time when he had made an alleged prior assignment of the same interest. Evidence examined, and held, insufficient to show ' 'that the relator had made a prior assignment and that he should be discharged from imprisonment.
    Appeal by the relator, McWalter B." Sutton, from an order of ■ the .Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of March, 1912, dismissing a writ of habeas corpus.
    
      Max Brown, for the appellant.
    
      Hersey Egginton, Assistant District Attorney (James C. Cropsey, District Attorney, with him on the brief), for the respondent.
    * See Notes, vol. 15, p. 152; 23, p. 55.
   Woodward, J.:

Eichard D. Monaghan, on the'23d day of August, 1911, laid an information before a Magistrate’s Court in the borough of Brooklyn, charging the relator with the crime of grand larceny, the specifications being in substance that the relator called upon him and represented that he had an income of about $2,500 per year, payable quarterly from the estate of his deceased father; that $750 of this amount would be due Hay 1st following, and that no part of the. same had been assigned or disposed nf; that relator stated that if the deponent would loan him the sum of $450 he, the relator, would execute and deliver to deponent an 'assignment of $450 out of said income of $750, and also give a promissory note due Hay 1, 1911, for a similar amount; that, relying upon these statements, deponent agreed to make such loan; that the relator executed and delivered a writing purporting to be an assignment of the sum of $450 from the income, and that deponent thereupon delivered to the relator the sum of $450; that subsequently, and on the 2d day of Hay, 1911, “your deponent caused to be presented at.the office of Oscar Passavant, executor of the estate of Geo. W. Sutton, deceased, where the aforesaid income to this defendant is payable, the annexed assignment, who referred deponent’s representative, Samuel G. Lockwood, to his attorneys, and the attorney for the estate, Harshal Steams. Your deponent has been informed by said Samuel G. Lockwood that the said Harshal Steams refused to recognize said assignment or to pay any moneys out on it, because of a prior assignment of said income of $750 from the estate of said George W. iSutton, deceased, made by the defendant herein to one Philip Star, dated on or before February 4th, 1911. Your deponent asks that the annexed affidavit of said Harshal Steams be made a part thereof, and-upon the foregoing, and the said affidavit charges the said HcWalter B. Sutton with the crime of grand larceny and prays that he be apprehended and held to answer according to law.”

The “ annexed assignment ” is an instrument in the form of an assignment and provides that in consideration of one dollar, and other valuable considerations, the relator sells, assigns, transfers and sets over “ unto the said Richard D. Honaghan the sum of four'hundred and fifty ($450) dollars, to secure a certain promissory note, made this 2-5th day of Harch, 1911, payable on the 1st day of May, 1911, from the quarter annual income due me from the estate of my father, George W. Sutton, deceased, which said income is due and payable on the 1st day of May, 1911, to have and to hold the said sum of four hundred and fifty ($450) dollars unto his heirs, executors and assigns, and that I hereby assign all my right, title and interest in and to the said sum of four hundred and fifty ($450) dollars from my said income of May 1st, 1911.”

The affidavit of Marshal Steams, referred to -above, states that he is the attorney of the estate of Geo. W. Sutton, deceased, and that he received a letter from Oscar Passavant, executor of said estate, of which a copy is set out, giving notice that one Philip. Star claimed to be entitled to the sum of $750 out of the income-, of the estate to become due on the 1st day of May, 1911, and. that thereafter, and on the 2d day of May, 1911, one Max-Brown, who represented himself to be the attorney for said Philip Star, called at the office of your deponent and exhibited the original assignment made by one McWalter B. Sutton on or-before February 4th, 1911, of the income due said Sutton from said estate on May 1st, 1911, to said Philip Star, and then and there received a check from your deponent to the order of Max Brown, attorney for Philip Star, in the amount of $510, which, sum was all but $100 of the income due said McWalter B. Sutton from the estate of said George W. Sutton, deceased, May 1st,. 1911.” Samuel G. Lockwood makes an affidavit that the facts, stated by the complainant, in so far as they are based on information- coming from him, are true, and upon this information, without further examination or inquiry, a warrant was issued, and the relator is now in custody by virtue of said warrant, as the return to the writ of habeas corpus now before us shows. Upon the hearing at Special Term the learned court dismissed the writ, and the relator appeals to this court.

There is not a single allegation of fact anywhere in the papers to show that there was ever a valid assignment of this income from the relator to Philip Star. Mr. Star, in his letter to Oscar Passavant, the executor of the estate, does not make any such claim. He simply asks the" executor to “ take notice that I am holding an assignment of $750 against the income of Dr. W. B. Sutton which will become due May 1st, 1911.” This is not an allegation that McWalter B. Sutton, the relator, had made an assignment of this sum, assuming the letter to be competent evidence of the fact, if it existed, and the affidavit of Marshal Stearns does not show that he ever made such an assignment ; his affidavit says that Max Brown, representing himself to be the attorney of Philip Star, called at his office and exhibited the original assignment, and that this attorney then received deponent’s check for $510, which sum was all but $100 of the income due,” etc. But the original assignment, according to the claim of Mr. Star, was for $750, so that there is nothing to show that Philip Star ever had such an assignment as he claims in his letter, and Mr. Steams does not tell us how he knew that Max Brown exhibited the “ original assignment made-by one McWalter B. Sutton,” for he nowhere suggests that he was familiar with his signature, or that he took any pains to examine said original assignment, and no such assignment is contained in the record, although it must have been in the possession of the executor of the estate or his attorney if it was ever paid. So far as appears from the affidavits, the so-called “ original assignment ” may have been forged, or it may not have been an assignment at all. We are nowhere shown the contents of this alleged “ original assignment,” and when a man’s liberty is at stake, we ought at least to be able to say from a perusal of the “ so-called assignment,” whether it amounted in law to such an assignment. We pass over the question of whether the relator had the power to assign this income, because we are unable from any thing in the record to determine this.

So far as this record shows, the relator gave a note for $450 on the day of the execution of this alleged assignment. By the assignment it is declared that it is “ to' secure a certain promissory note, made this 25th day of March, 1911, .payable on the 1st day of May, 1911,” and it is not shown that this note has not been paid. We do not find any evidence before the magistrate that McWalter B. Sutton had made any previous assignment of this income. The letter of Philip Star does not allege that the assignment which he held was made by McWalter B. Sutton; it does not appear from the record that the relator is Dr. W. B. Sutton, and there is just as strong a presumption that this alleged assignment might have been forged as there is that thé relator made it and then made a second assignment of the same. But the letter of Philip Star to Oscar Passavant is not evidence of anything; it is mere hearsay, and the whole case is open to this general objection, that it is made of what some one other than the persons making the affidavits has been told by sone one else.

The order appealed from should be reversed and the writ sustained, and the relator be discharged from custody.

Jeitks, P. J., Hibschbebg, Thomas and Oabb, JJ., concurred.

Order* reversed, writ sustained and relator discharged from custody.  