
    Alice T. MacLatchy, Respondent, v. William P. Hannan, Appellant.
    
      Evidence—proof, aliunde the instrument, that <one .executing it as attoi'ney was in fact such attorney.
    
    An assignment in writing, purporting to have been executed by the attorney in fact of the original claimant, does not carry with it any implication that' the person executing it was in fact the attorney of such original claimant. . *
    Appeal by the defendant, William Pi Hannan, from a judgment of the Supreme Court in favor of the plaintiff, entered ,in the office of the clerk of the county of Westchester on the, 8th day of Juné, 1904, upon the report of a referee.
    
      Frank A. Bennett, for the appellant.
    
      John M. Shinn, for the respondent.
   Rich, J.:

Several questions have been presented upon this appeal, but as the judgment must be reversed upon tlm first, it will be unnecessary to consider the others.

The plaintiff brings this Action to recover !$92'1.10, balance claimed to be due for lumber and trim alleged to have been sold and delivered to the defendant by Frank Miller, doing business under the firm name and style of the Frank Miller Lumber Company, alleging that the claim was duly assigned to her by an instrument in writing by R. H. Murphy, attorney in fact for said Frank Miller. o ' .

Defendant answering alléged no knowledge or I information sufficient to form a belief as to the truth of the allegation of the transfer of the cause of action to the plaintiff, '

Plaintiff’s right to maintain the action was in issue upon the trial, and it was incumbent upon her, therefore, to show that she was the owner of the claim in suit. She. rested her case, however, after giving evidence tending to show the sale and delivery of the lumber and trim, and offering the written assignment of the claim in evidence, which was received. under defendant’s objection and exception. .

The referee has found that the claiin and account were duly assigned to the plaintiff, and states in his opinion that the instrument of' assignment introduced in evidence, executed and acknowledged by the' attorney in fact of said Frank Miller, transferred the cause of action to the plaintiff.” There is no trouble with the assignment itself; the fault lies in the failure of the plaintiff to show that Murphy was the attorney in fact for Frank Miller, or that he had any\ authority to execute and deliver it. The contention of respondent’s counsel, that the written assignment establishes the fact of a valid assignment, is incorrect; it shows that Murphy assumed authority to make such an assignment, but fails to show that it was vested in him. It was necessary for the plaintiff, in • order to maintain her cause of action, to show that Murphy had authority to assign the claim to her, and because of her failure to , do this, the judgment must be reversed and a new trial granted before another referee, costs to abide the event.

Hirschberg, P. J., Bartlett, • Jenks and Miller, JJ., concurred.

Judgment reversed and new trial granted before another referee, to- be appointed at Special Term, costs to abide the event..  