WINTHROP a. MEYER

WINTHROP a. MEYER. New York Common Pleas; General Term, March, 1855. Competency oe Witness.—Assignor oe Chose in Action. The fact that an assignor of a chose in action has covenanted with the assignee that the full amount of the claim was due, does not render him incompetent to prove the claim in a suit by the assignee. Appeal from a judgment of the Marine Court. This was an action brought by Winthrop, as assignee of one Brown, to recover $150, for services rendered to the defendants, Meyer and Loovis, by Brown, as broker, in procuring a loan. On the trial the plaintiff put in evidence an assignment in writing, of the claim from Brown to himself. The assignment contained a covenant that the amount of $150 was due and payable from the defendants. The plaintiff then called Brown himself as a witness, to prove the rendering of the services alleged. The defendants objected to the competency of the witness, on the ground that under the covenant of the assignment, the suit must be considered to be prosecuted for his benefit. The objection was overruled, and the testimony admitted, subject to exception. Judgment having been rendered for the plaintiff, the defendants appealed, both for error in the admission of Brown’s testimony, and on the ground that the evidence was not sufficient to authorize the judgment. JR. W. JKirTcham, for appellants.' The testimony of the witness, Brown, was inadmissible. He was the assignor of the claim in suit, and by his assignment covenanted that the amount of $150, was due and payable by the defendants, which covenant brought him within the first clause of section 399 of the Code, as a person for whose immediate benefit the action was prosecuted. W. O. JBJornfager, for respondent. The witness, Brown, was a .competent witness, under the Code, as the action was not for his immediate benefit. And his testimony shows that he had no interest in the result of the action. (Allen v. Franklin Insurance Company, 9 How. Pr. R. 501. Davison v. Minor, ib. 524, and cases there cited). [MAJORITY — Daly, J.] Daly, J. The fact that the assignor had covenanted that the amount of the claim was due, and that he might become liable upon his covenant, in the event of the plaintiff’s failure to recover, did not render him the party for whose benefit the suit was brought. He had an interest in the result, which, might affect his credibility, but which did not disqualify him. from being a witness. Upon the evidence, the judgment cannot be disturbed.