Burtnett v. Gwynne
New York Court of Common Pleas
Appeal from a judgment of the District Court of the City of New York for the third judicial district. This action was brought by the plaintiff as assignee of the firm of Charles Pitt & Son, upon an account for work and materials furnished for the defendant. The defence was a general denial, payment, and set-off. On the trial before the justice, the plaintiff called one of the assignors as a witness.
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Appeal from a judgment of the District Court of the City of New York for the third judicial district. This action was brought by the plaintiff as assignee of the firm of Charles Pitt & Son, upon an account for work and materials furnished for the defendant. The defence was a general denial, payment, and set-off. On the trial before the justice, the plaintiff called one of the assignors as a witness. The defendant objected to his testimony, on the ground that ten days’ notice of the intended examination had not been given to the defendant, as required by section 399 of the Code. The justice…
1Opinion of the CourtWoodkuff, J.
We think that where the object is to prove that the alleged assignment to the plaintiff is a mere sham, and that although an assignment in form has been executed, it was executed under an arrangement that recovery should be for the benefit of the alleged assignor, and that the form of an assignment was gone through with for the mere purpose of securing a recovery by means of the assignor’s own testimony, while he was to receive and enjoy the fruits of the recovery, then proof that there was no consideration for the assignment, may, in connection with other evidence tending to those…
2Cases cited1 opinion
- Collins v. KnappNew York Supreme Court · 1854
3Cited by1 opinion
- Pottier & Stymus Manufacturing Co. v. NoelThe Superior Court of the City of New York and Buffalo · 1892