Moffatt v. Bailey
Appellate Division of the Supreme Court of the State of New York
Appeal from New York county court. Action by Lawrence Moffatt against Howard N. Bailey. From a judgment reversing a judgment of a justice in favor of the defendant, he appeals. Modified. One Tompkins was under contract to build a house for defendant, and wrote to the latter that Moffatt (the plaintiff) was to furnish the building materials, .and that he would like defendant to draw checks to one Meyer, Tompkins’ bondsman, by whom they would be indorsed to plaintiff.
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Appeal from New York county court. Action by Lawrence Moffatt against Howard N. Bailey. From a judgment reversing a judgment of a justice in favor of the defendant, he appeals. Modified. One Tompkins was under contract to build a house for defendant, and wrote to the latter that Moffatt (the plaintiff) was to furnish the building materials, .and that he would like defendant to draw checks to one Meyer, Tompkins’ bondsman, by whom they would be indorsed to plaintiff. Defendant assented, and sent all checks accordingly except three, aggregating $230.31, which he paid directly to Tompkins. The…
1Per curiam
We are of opinion that the plaintiff would have made out a good case had he proved that the contractor who built the defendant’s house was still indebted to him (the plaintiff) for materials furnished. This he failed to do. To constitute an equitable assignment, a valuable consideration is essential and indispensable. Shaw v. Tonns, 20 App. Div. 39, 46 N. Y. Supp. 545. The justice was therefore right in dismissing the complaint. The case, however, was simply one of failure. of proof, and the judgment, so far as it directed that the complaint be dismissed on the merits, was improper.
The…
2Cases cited1 opinion
- Shaw v. TonnsAppellate Division of the Supreme Court of the State of New York · 1897
3Cited by1 opinion
- Bleitz v. Bryant Lumber Co.Washington Supreme Court · 1920