
    EQUITABLE TRUST CO. OF NEW YORK v. STEPHENS.
    (Supreme Court, Appellate Term.
    December 15, 1911.)
    Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by the Equitable Trust Company of New York against William Stephens. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered. McLear & McLear, for appellant. George Murray Hulbert, for respondent.
   PER CURIAM.

The material question to be determined in this case is whether or not there was sufficient testimony to show an assignment of the contract sued upon to the plaintiff:, and also whether or not there was a performance of such contract on the part of the assignor. The defendant offered no testimony upon these questions, but rested upon the plaintiff’s evidence, and the complaint was dismissed. We are of the opinion that upon those issues the plaintiff gave sufficient evidence to show both assignment to it and performance by its assignor, and that a recovery by the assignee herein would effectually preclude the assignor from maintaining an action against this defendant, and be a perfect protection to him, if one was brought, and in such a case he has no right to require more. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.  