Samuel T. Shaw, Appellant, v. Lewis N. Tonns, Respondent

Samuel T. Shaw, Appellant, v. Lewis N. Tonns, Respondent. An order to pay a third, person from a fund — it must have a valuable consideration to make it an equitable assignment — lien for work done. An order made by a ship carpenter having a lien for repairs upon a house boat, directed to the owner, stating “ will you please pay to Kraemer Bros, the amount of the balance on contract, and also on extra work, and charge to my account,” does not, in the absence of proof of any consideration therefor, constitute an equitable assignment of the claim, and is not a bar to the assertion of a lien on the boat by the ship carpenter for the work done thereon. Appeal by the plaintiff, Samuel T. Shaw, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 1st day of February, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of January, 1897, denying the plaintiff’s motion for a new trial made upon the minutes. Henry W. Baird, for the appellant. Nelson Zabriskie, for the respondent. [MAJORITY — Cullen, J.:] Cullen, J.: This is an action in replevin to recover possession of a house boat, brought by the owner against a ship carpenter to whom it had been delivered for the purpose of repairing. But one question is raised on this appeal. The defendant claimed a lien on the boat for the amount due him for work and materials. On the trial the plaintiff showed that the defendant had given Kraemer Brothers the following order: “ College Point, June 25th, 1896. “ Samuel T. Shaw, Esq.: “ Dear Sir.—- Will you please pay to Kraemer Bros, the amount of balance on contract and also on extra work and 'charge to my account. $27000/100 27900/100 $54700/100 CAPT. L. N. TONNS.” At the close of the evidence the plaintiff asked the court to direct a verdict in his favor, on the ground that the order was an equitable assignment, as to- the Kraemers, of the defendant’s claim, and that the assignment destroyed any lien that the defendant might ■ otherwise have had. This request the court refused, and the cause was submitted upon the other issues to the jury, who found for the defendant. The perfect .answer to the appellant’s claim is, that no equitable assignment is established. The order on its face recites no consideration, and the plaintiff neglected to prove that there was, in fact, any consideration for it. “ The presence of a valuable consideration, upon which the order or direction to pay was founded, becomes the essential and necessary element of an equitable assignment.” (Tallman v. Hoey, 89 N. Y. 537; Brill v. Tuttle, 81 id. 457.) • The judgment and order appealed from should be affirmed, with costs. All concurred. Judgment and order- affirmed, with costs.