
    The Pottier & Stymus Mfg. Co., Resp’t, v. Auguste Noel, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed January 11, 1892.)
    
    Assignment—Proof of.
    Defendant set up a counterclaim in favor of a firm of which he was a member, which he alleged had been assigned to him. The alleged assignment was oral, and consisted merely of a statement made by defendant to his partner that he would transfer the indebtedness over. There was no-delivery of anything and the account was not even charged against'defendant. Hdd, not sufflcient'to establish an assignment of the claim, and that the referee properly disallowed the counterclaim.
    
      Appeal by defendant from judgment entered on report of referee in favor of the plaintiff.
    
      Abram Kling, for app’lt; Charles M. Hall and Elbert Crandell, for resp’t,
   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 commencement 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 id., 496; Richardson v. Mead, 27 Barb., 178; Burtnett v. Gwynne, 2 Abb. Pr., 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 title. Judgments and accounts have been transferred by delivery of the transcript, or bill of items, where an absolute transfer was intended, and so in many other cases effect has been given to symbolical 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. 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., 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 G-ildersleeve, J., concur.  