
    Samuel Walsh, Respondent, v. Albert L. Woarms and Louis J. Lesser, Copartners Doing Trade and Business under the Firm Name or Style of D. S. Hess & Co., Appellants.
    Second Department,
    November, 1905.
    Assignment of claim—no action by assignor lies though claim reassigned after action brought.
    A plaintiff, who "has assigned his claim against the defendants, who have had notice of the assignment, cannot maintain an action thereon, as there is no claim then existing in his favor. Nor will a reassignment of said claim to plaintiff after the commencement of his- action create such cause of action, as the reassignment has no retroactive effect.
    Appeal by the defendants, Albert L. Woarms and another, copartners doing trade and business tinder the firm name of style of D. S. Hess & Co., from a judgment of the County Court of Queens county in favor of the plain tiff, entered in the office of the clerk of the county of Queens on the 24th day of October, 1904, upon the verdict of a jury.
    
      M. A. Lesser, for the appellants.
    
      John B. Merrill, for the respondent..
   Rich, J.:

The plaintiff has recovered a judgment against the defendants for a balance claimed to be due him upon a contract to supply certain labor and materials to defendants, for which they promised to pay §320, and from that judgment this appeal is taken.

Before the commencement of this action, plaintiff sold and assigned to the Acme Security Company all sums of money due or to become due upon the contract, and the following notice thereof was served upon the defendants:

“ Gentlemen.— Please take notice that Mr. Samuel Walsh has. this day assigned to the Acme Security Company, of 289 4th Avenue, Hew York City, the sum of three hundred and twenty dollars (§320.00) less such sum of money as may be withheld by D. S. Hess & Co. for labor furnished as per a certain contract existing between said D. S. Hess & Co. and Samuel Walsh for work and material to be furnished in the building cor. of 63rd street and Central Park West, known as the Ethical Culture Building, and that your indebtedness per said contract will be payable' to the said Acme Security Company.
“ A'CME SECURITY COMPANY.
“(Signed) per K. G. Hevih, Secty.
“ Above O. K.
“ (Signed) Sam Walsh.”

It also appears'that the claim in suit was subsequently, but not until after the commencement, of this- action, reassigned to the plaintiff.

We are not called upon to consider the relations existing between the plaintiff and the Acme Security Company. The claim in suit was properly assigned to the company, and notice thereof was given to the defendants, and their failure to pay any ..one other than the assignee of the claim, was' excusable; and yet, because of their refusal to do so they are charged with the costs of this action. The judgment must be reversed upon the ground that at the time of the commencement of the suit no cause of action existed in favor of the plaintiff, and the reassignment did not have the. retroactive, effect: of creating one. (Ervin v. Oregon Railway & Nav. Co., 28 Hun, 269.)

The'judgment of the County Court of Queens county must--he reversed,, with costs. ■ .

Hirschberg, P. J., Woodward,. Jenks and Miller, JJ., concurred.

Judgment of. the County Court of Queens county reversed and ' new trial ordered, costs to abide the final award of costs..  