
    The Buffalo Ice Co., Respondent, v. Wesley A. Cook, Appellant.
    (Superior Court of Buffalo — General Term,
    July, 1894.)
    In an action for goods sold and delivered it appeared that a portion of the goods had been purchased from another person, who had previously been conducting the business, pending an option given to the plaintiff to purchase said business. There was no allegation or proof that the claim for the goods so sold was assigned to the plaintiff. Meld, that it was error for the court to refuse to charge that the goods supplied to defendant up to the time of the transfer of the business were supplied by the former proprietor on his own account and that plaintiff could not recover therefor, and that a recovery for such goods could not be sustained under the complaint. .*
    This is an appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial on the minutes. ,
    
      Frank Gibbons, for respondent.
    
      Adolph Rebadow, for appellant.
   White, J.

William L. ¡Markham was carrying on the ice business in Buffalo during the year 1891 and until September 10, 1892. The defendant was one of his customers, and was ■supplied by Mm with ice to that date. By the verdict of the jury it is established as a fact that Markham was to receive and the defendant was to pay him ten cents per hundred. On August 31, 1892, Markham gave to the plaintiff an option to purchase his ice business; the plaintiff availed itself of the option thus given to it on September 10, 1892, on which date the business was transferred to it by Markham by a bill of sale, which included an assignment of Ms claim against the defendant for ice theretofore delivered during the ten days in September. After September tenth the plaintiff supplied the defendant with ice. ' The value of the ice supplied by Markham .during the ten days in September was twenty dollars and seventy-five cents. '

As the order denying the defendant’s motion for a new trial does not recite the grounds upon which the motion was made, the appeal from the order raises no question of fact for review. Pharis v. Gere, 107 N. Y. 231; Moorehead v. Holden, 7 Civ. Proc. Rep. 188; Maas v. Ellis, 12 id. 323.

The only question presented for our consideration, therefore, arises upon the defendant’s exception to the refusal of the court to charge the jury and to rule that the ice business was transferred to Markham on September tenth, and that the ice supplied to the defendant to September tenth was so supplied on his own account, and that for such ice the plaintiff was not entitled to recover.

There can be no dispute but that the facts were as the defendant requested the court to charge them to be.

The plaintiff contends that, notwithstanding the fact that the plaintiff must recover the twenty dollars and seventy-five cents, if at all, by virtue of the assignment from Markham, the assignment is unimportant for the reason that “ it is only one link in the chain of his title.” As to this part of the claim the plaintiff was entitled to recover only as the assignee of Markham, and no assignment is alleged or proven, nor was any request made to amend the complaint in this respect on the trial, although it was made apparent that it was necessary.

In such a case the recovery must be supported by the complaint.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulates to reduce the verdict and the judgment entered upon it by twenty dollars and seventy-five cents. If he so stipulate, the judgment should be affirmed, without costs to either party on this appeal, but with costs in the action to be adjusted.

Hatch, J., concurs.

Judgment reversed and new trial granted, with costs to abide event, unless plaintiff stipulates to reduce the judgment, in which event it is affirmed, without costs of appeal, but with costs of action.  