
    Michael Noonan, Resp’t, v. The Mechanics & Traders’ Bank, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    Honey received—Liability of assignee to return balance.
    Plaintiff, who was indebted to various parties, assigned his claim against the city under a contract to defendant, for the purpose of paying such indebtedness. He had previously assigned portions of the claim to his other creditors, who all joined with defendant in assigning the claim to an attorney, with whom plaintiff joined in an action against the city, and who retained a balance after paying off said claims. No agency as between defendant and said attorney was shown. Held, plaintiff's right of action to recover such balance was against such attorney, and not against defendant.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff for $1,610.02,, damages and costs, entered upon verdict directed by the court.
    
      Thomas J. McKee, for app’lt; L. Laflin Kellogg, for resp’t.
    
      
       Reversing 44 St. Rep., 768.
    
   Daly, Ch. J.

The plaintiff, Michael Noonan, having a contract, dated October 24, 1878, with the mayor, aldermen and commonalty of the city of New York for regulating and grading, curbing and flagging the Eleventh avenue boulevard, from One Hundred and Fifty-fifth street to Kingsbridge, and for the construction of sewers, etc., made an assignment on August 22,1879, to the Mechanics & Traders’ National Bank (to whose rights and obligations this defendant, the Mechanics & Traders’ Bank of the city of New York, has succeeded) of all the moneys due, and to grow due, under said contract as collateral security; and this-action is brought to recover from the defendant the sum of $1,000, with interest from May 4, 1884, alleged to have been collected and retained by the bank under such assignment in excess of the sum which it was intended to secure.

It appears that the plaintiff Noonan had previously, on May 3, 1879, made an assignment of the same moneys to John H. Strahan, and in the years 1880, 1881 and 1884 he assigned part of the same moneys payable under the contract to several other persons. All the assignees afterwards assigned their respective interests in the fund to one McKee, who thereupon, as co-plaintiff" with Noonan, brought an action in the supreme court against the mayor, aldermen and commonalty to recover the balance due under said contract, compensation for extra work and damages. Judgment was recovered in that action against the city for the whole amount claimed, viz. : $126,221.98, principal, interest and -costs, and under the provisions of the judgment that amount was paid to McKee, who was adjudged entitled to receive it as .assignee and sole owner and holder of the cause, or causes, of ^action. McKee paid to each of the parties to whom plaintiff had .assigned, as aforesaid, the amounts to which they were respectively entitled, among others paying to the Mechanics & Traders’ .Bank $21,299.48, the exact sum due them, and no more. After all such payments there was $1,000 left, and McKee retained it; and it is that sum for which Noonan now sues the-bank.

It would seem from the mere statement of the facts that the claim of the plaintiff is against McKee, and that he has no cause •of action against the bank. If the latter, under the assignment ■originally made to it by Noonan, were obliged to account to him, 'the subsequent transfer by it to McKee of all its right, title and interest, which transfer was made with Noonan’s knowledge and assent, relieves it from any such obligation. The knowledge and assent of Noonan appears, among other proofs, by his letter of dixections to McKee, dated February 12, 1884, directing him how to dispose of the fund after paying the claim of the bank; by his joining McKee as co-plaintiff with himself in the action against the city, claiming'that McKee, as assignee of Strahan of all the causes of action, was vested with the title to all the sums due; and by the judgment in their joint action, by virtue of 'which McKee collected such sums; which judgment, if not conclusive upon the plaintiff, is the fullest ratification of the substitution of the latter in place of the bank, or of Strahan, as assignee of the whole fund.

Plaintiff seeks to hold the defendant liable upon the theory that McKee was its agent to collect the moneys under the several assignments. If such agency were established, the action, of course, would be maintainable; but there is nothing in the case to show agency; on the contrary, the plaintiff, in his letter of instructions to McKee, above referred to, treats him as the assignee, trustee or depository of the whole fund, and not as the agent of the bank, and specifically states what sum he is to pay the latter, viz.: $20,665.91, as “the claim of the bank” on four notes signed •or endorsed by him. This is wholly inconsistent with the claim mow made that McKee was bound to account to the bank for the whole sum collected under the judgment, $126,979.80, and that the bank is to account to the plaintiff therefor.

The judgment should be reversed and a new trial ordered, with •costs to the defendant to abide the event of the action.

Bischoff and Pryor, JJ., concur.  