
    Peyser v. McCarthy.
    
      (Superior Court of New York City, General Term.
    
    November 3, 1890.)
    Equitable Assignment.
    Plaintiff purchased goods of D., who was indebted at the time to W. and defendants. Plaintiff was ignorant of defendants’ claim, but knew of W.’s claim, and had W. join in the bill of sale, which recited that the goods purchased were “free from all claims. ” The property having been levied on under a judgment confessed by D. to defendants, plaintiff, to secure himself from the levy, paid the amount thereof to the sheriff under protest, and subsequently obtained the amount so paid from W., giving a receipt in full for all claims of every description. Held, that such payment by W. acted as an equitable assignment against plaintiff of any cause of action he might have against the sheriff.
    Appeal from jury term.
    Action by George Peyser against John 0. McCarthy and others, substituted as defendants in the place of Hugh J. Grant, sheriff, etc. There was a verdict for plaintiff for $520.92, and from the judgment entered thereon defendants appeal.
    Argued before Freedman and Truax, JJ.
    
      Henry D. Hotchkiss, for appellants. John Fennel, for respondent.
   Truax, J.

The plaintiff was the owner of certain property that he had bought from one Duntze. At the time of the sale, Duntze owed one Wagner and the firm of Austin, Nichols & Co., the substituted defendants herein. Plaintiff was ignorant of the fact that Duntze owed Austin, Nichols & Co., but did know that he owed said Wagner, and, to protect himself against the claim of said Wagner, had said Wagner join said Duntze in making the bill of sale to him, said plaintiff. This bill of sale contained a statement that the property purchased “was free from all claims.” Afterwards Duntze confessed judgment to Austin, Nichols & Co. Execution was issued on this judgment, and the sheriff levied on the property that had been sold by Duntze to plaintiff. Plaintiff, to secure his property from the levy, paid the sheriff under protest the sum of $479.02. He now brings this action to recover that sum.

It was shown on the trial that, after payment by plaintiff to the sheriff, he went to Wagner, and obtained the sum of $475, and gave a document in which he acknowledged the receipt of said sum, and stated that such sum was “in full for all claims and demands of every nature and description” against the said Wagner. It does not appear that plaintiff had any other claim against said Wagner than the claim growing out of the sale to him by Duntze and Wagner and the seizure of the property by the sheriff. In fact, the only inference that can been drawn from the testimony is that he had no other claim. But plaintiff sought to show on the trial that he borrowed the $475 from Wagner. The trial judge charged that plaintiff could not be defeated by the fact that he received the sum above mentioned from Wagner; that such payment must not be considered as a defense, and did not inure to the benefit of the defendants, and was not received as satisfaction. To this charge the defendants excepted. The defendants had set up in their answer this payment by Wagner, and bad alleged that plaintiff was not the real party in interest.

The case presents this state of facts: Plaintiff makes a claim for the same cause of action against two parties. One of these parties pays said claim, and he then brings an action against the other party. Can he maintain such action? We are of the opinion that-he cannot, at present, maintain such an action in this court. The payment by Wagner—that is, if made as stated in the documents above referred to—acted as an equitable assignment against plaintiff of any cause of action that' he might have against the sheriff for wrongfully seizing his (the plaintiff’s) property; and it was errorfor the trial judge to charge as above stated. If, however, said $475 was lent by Wagner to plaintiff, it would not act as an assignment or satisfaction of plaintiff’s claim against defendants; and in that event the question of loan or equitable assignment should have been left to the jury. The charge was, in effect, a direction to find for plaintiff on that point, and it was not necessary for defendants, they having excepted, to ask to go to the jury on that point. Vail v. Reynolds, 118 N. Y. 301, 23 N. E. Rep. 301, and cases there cited.

We have not considered the question of fraud in the sale to plaintiff, because that question was decided against defendants, and there are no exceptions in the case that bring the question before us. The judgment and order appealed from are reversed, and a new trial is ordered, with costs of the former trial and of this appeal to the party who finally prevails in the action.  