
    Deach v. Perry.
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    1. Reference—Weight of Evidence.
    Where there is evidence to justify the finding of the referee, who saw the witnesses, and heard them testify, the finding will be sustained, though the testimony was conflicting.
    2. Assignment—Claim for Labor.
    Whether the accounts sued on by an assignee were assigned for a valuable consideration or not is immaterial, as a defense by the debtor, where the claims were of a character that could be assigned, under Code Civil Proc. N. T. § 1910, which provides that any claim or demand, with certain exceptions, can be transferred.
    3. Same—Defenses to Claim.
    Where a debtor has paid a part of a claim to the original holder after the transfer or assignment to a third person, without notice to him, the holder of the account cannot recover the amount so paid, under Code Civil Proc. § 1909, providing that defendant can set up any defense or counter-claim existing against the assignor before notice of the transfer.
    .4. Master and Servant—Compensation.
    Plaintiff only swore to 51 hours’ work done by him between certain dates, hut produced a written memorandum, kept by his daughter, which showed 61 hours’ work. Plaintiff swore he could not read writing, but could read figures, and that the figures in the memorandum were correct. The daughter was not produced as a witness. Held, that it was error to allow for more than 51 hours’ work.
    
      5. Same.
    When an employer has in his possession articles belonging to an employé, retaining and using them after return has been demanded, he is chargeable with their value on settlement of accounts.
    Appeal from special term, Oneida county.
    The plaintiff, Jacob Deach, sued defendant, William H. Perry, to recover money due for labor accounts; the greater portion of the claim being demanded by plaintiff on alleged assignments by the original claimants. J udgment on default was entered. The inquest as taken was set aside, and the ■cause ordered to be referred. The referee afterwards made a report in favor of plaintiff and against defendant for $60.50, and ordered judgment for that .amount. Prom the judgment defendant appeals.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      H. Clay Hall, for appellant. Willard Rinkle, for respondent.
   Hardin, P. J.

Appellant’s first point is that the referee erred in finding “that the several accounts, (mentioned in the second count of the complaint,) and each of them, were duly assigned by written instruments to the plaintiff before the commencement of this action;” and his argument is that there is no suflicient evidence that the accounts, or any of them, were assigned before the commencement of the action.

I. The complaint contains the positive averment that the accounts were assigned before the commencement of the action. The answer contains only a denial of knowledge or information sufficient to form a belief as to whether or not the persons named in the second subdivision of the plaintiff’s complaint ever sold or assigned the claims therein to the plaintiff. It contains no affirmative defense on the subject of the ownership of the claims. Upon the trial plaintiff produced written assignments marked “Exhibits 2 to 9” inclusive, which purported to be executed by the several persons referred to in the complaint. These several assignments bear date November 2, 1887. Presumptively the assignments were executed on the day they bear date. The plaintiff testified that Mehl, Wilbert, Herrig, Simon Deach, WilliamNuffer, Albert Hoeglin, George Seifert, Fred Seifert, Adam Horn, Henry Fike, and William Herrig worked for the defendant, loading a boat-load of ice. He also testified, viz., “I saw Wilbert sign his name to it, ” (referring to Exhibit 2,) which was then offered in evidence, and reads as follows:

William, Perry to Herman Wilbert, Dr.
“1887. To 10 hours’work, @ 15 cts. - $1.50
“For value received I hereby sell, assign, and transfer the foregoing account to Jacob Deach. Herman Wilbert.
“Dated Nov. 2nd, 1887.”

The other assignments embracing the Exhibits from 2 to 9, inclusive, were like the one which has just been given mutatis mutandis. The witness continued, viz.: “The assignments were not two days apart. I returned them to you [Mr. Rinkle] the next day after they were all assigned. They were signed long before the commencement of this action,—a month before.” In the course of the cross-examination he stated, on referring to the Exhibits 2 to 9, inclusive: “These assignments were signed the same day he gave them to me. About the 10th or 15th of November these papers were signed. Christian Herrig signed the last one in his own house. Had only Christian’s with me; the rest were at my house.” The plaintiff, on being recalled as a witness, testified, viz.: “The day after November election I came down and got those assignments, and they were signed same night and next day.” Inasmuch as election day was the 9th of November in 1887, it is apparent that the testimony of the plaintiff was somewhat inaccurate and vague, if not intentionally false, as to the date when the assignments were executed. It appears from his evidence that he is unable to read writing. However, there is some other evidence found in the appeal-book which bears upon the question when the assignments were executed. Mr. Rinkle, the attorney for the plaintiff, was called as a witness, and, after testifying that the action was commenced by the service of a summons on November 11, 1887, he adds: “These assignments of the causes of action (being Exhibits 2 to 9, inclusive) in second count of complaint were returned to me about a week before the-commencement of that action as they are now. 1 showed them to Mr. Perry on the day the summons was served.” This evidence is very pointed and important, and apparently sustains the date mentioned in the assignments as the one when they were executed. However, in considering this evidence, it is important to bear in mind that the defendant when upon the stand as a witness testified, viz.: “I remember coming into your [Mr. Rinkle’s] office before the suit was brought. I came in the day the summons was served. To my knowledge you did not show me those assignments. You might have said all the accounts were assigned to Jacob Deach. The day the summons was served I did not see those papers, (Exhibits 2, 3, 4, etc.) You did not, to my knowledge, say, ‘ Here are the accounts.’ You told me on several occasions afterwards that the accounts were all assigned to Mr. Deach.” Upon the evidence which we have referred to we think a fair question of fact for the consideration of the referee was presented as to when the assignments were executed,—whether before or after the commencement of the action. The referee has found that they were assigned before the action was commenced. A careful inspection of the evidence has not led us to the conclusion that the referee committed an error, or that his findings were contrary to the weight of the evidence. He saw the witnesses, heard their testimony, and was quite as well capable of determining where the truth was in respect to the date of the execution of the assignments as judges can be in reading the testimony found in the appeal-book. We must therefore accept his finding of fact, and hold that the appellant’s first point is unavailing.

2. We think the form of the assignments entirely sufficient to carry the respective accounts to the plaintiff. Whether they were made for an actual consideration paid by the plaintiff to the assignors is not important. It is sufficient that the plaintiff had the legal title to the accounts at the time of the commencement of the action. A payment to the plaintiff would discharge the defendant; a recovery by the plaintiff, and a payment of the recovery by the defendant, would discharge his liability. They were claims which might be transferred. Code Civil Proe. § 1910. In Hays v. Hathorn, 74 N. Y. 486, in addition to the denial of the transfer of the note, and also a denial that the plaintiff was the legal holder and owner thereof, or was the real party in the suit, it was alleged that the note was transferred to another, who was the owner and holder, and the real party in interest, and it was held that a production of the instrument was prima faoie evidence of the plaintiff’s title, although it was said the defendants had a right to offer evidence to rebut that presumption. The case is quite unlike the one before us. This case is more like Allen v. Brown, 44 N. Y. 228, where it was held that, as against the plaintiff holding legal title to the claim by written assignment valid upon its face, “the debtor cannot raise the question as to the consideration for such assignment, or the equities between the assignor and assignee. ” That case was referred to with approval by Hand, J., in Hays v. Hathorn, supra. In Eaton v. Alger, 47 N. Y. 345, it was held that where a note had been delivered to the plaintiff “upon his undertaking to collect at his own expense,” and to pay to such person upon its collection a certain sum of money, the party was the real party in interest; and in Sheridan v. Mayor, 68 N. Y. 30, it was held that where the plaintiff holding the written assignment of the claim to himself, valid on its face, obtained the legal title, and was the real party in interest, notwithstanding the fact that the assignment was without consideration, and merely colorable as between him and the original claimant. In referring to that case Judge Hand says, in Hays v. Hathorn, 74 N. Y. 490, viz.: “¡Such assignment is expressly declared to protect the debtor paying the assignee against a subsequent suit by the assignor. ” The reversal in Hays v. Hathorn, supra, was put upon the ground ot the rejection of proof tending to “disprove any ownership or interest whatever in the plaintiff.” Here the plaintiff testified, viz.: “In regard to the assignments, they hold me responsible whether I collect or not; they are not to pay any costs whether I collect or not.” Further on the plaintiff does say in his testimony, viz.: “Well, if I get the money I will pay them.” We think the referee was warranted in finding that the plaintiff was the owner of the demands-assigned to him.

3. The appellant makes a point that the plaintiff was not the owner of the claim of Adam Horn and William FTuffer. Upon the subject of the ownership of those claims the testimony of the plaintiff is as follows: “Adam Horn told me to collect his account. I bought it from him. William FTeuffer told me the same. He told me, ‘I’ll hold you responsible for it, and you’ve got to pay me for it.’ I hired him.” It appears that the amount of the Horn claim was $2.55, and that of William FTeuffer was 45 cents. As the evidence which we have quoted was all there was upon the subject of the ownership by the plaintiff of the two demands, we think the referee was warranted in finding in favor of plaintiff in respect of those two demands.

4. It appears by the evidence that the defendant paid George Mehl the amount of bis claim, $1.50. The referee finds that the defendant made the payment, and the defendant testified that he made that payment without any knowledge that the claim had been assigned to the plaintiff. We think the defendant ought not to have been charged with the Mehl account. Code Civil Proc. § 1909. We also think that he should not have been charged with the Chris John Herrig account, which amounted to $1.50; and, as we understand the referee’s report, the gross sum of $57.58 includes both of these items. We therefore think the report and judgment thereon should be modified by striking out $3, together with the interest thereon from the 11th day of November, 1887, which apparently has been allowed to the plaintiff.

5. The referee allowed the plaintiff to Recover for 61 hours’ work at 15 cents an hour. Plaintiff testified as follows: “I know of my own knowledge I worked 51 hours between August 13th and 25th.” It appears that the memoranda of the hours’ work by the plaintiff were kept in a book by his daughter. She was not produced as a witness, and no satisfactory reason given why she was not called to testify to the correctness of the memoranda made by her. The plaintiff testified: “I cannot read writing. I saw my daughter write down those days. I can’t read those days, but I can read the figures, and I know they are down correct.” We think, under the circumstances, the plaintiff did not establish satisfactorily that he had worked more than 51 hours. We are therefore inclined to deduct from the referee’s report 10 hours’ work at 15 cents an hour, amounting to $1.50.

6. We think the defendant is not entitled to have credit for the tow-line. The testimony of the plaintiff is, he was requested by defendant to furnish it, .and that subsequently he asked defendant for the line, and the defendant replied, “he would pay me for it.”

7. We think the referee was warranted in charging the defendant with the value of the globe lamp. The defendant received it from the plaintiff, and continued to use it, and when the plaintiff asked for it he was told by the defendant’s servant that if it was taken away they would not have any left to use, and the testimony is to the effect that the defendant asked the plaintiff to furnish “anything the boat needed.” We therefore think the referee properly allowed the plaintiff to recover 75 cents for the globe lamp.

Judgment reversed, and a new trial ordered before another referee, with costs to abide the event, unless the plaintiff shall stipulate to reduce the report and judgment the sum of $4.50, and the interest thereon from the date of the referee’s report, in which event the report and judgment as so modified are affirmed, without costs of the appeal to either party.

Martin and Merwin, JJ„ concur. 
      
       Code Civil Proc. § 1909, allows defendant to advance any defense or counter-claim .existing against the transfer or before notice of the transfer.
     