JOHNSTON against BENNETT

JOHNSTON against BENNETT. New York Superior Court, Special Term, Dec., 1868. Assignability of Cause of Action.—Demubbeb. A cause of action for damages for procuring a sale of goods by false representations, is assignable; and the assignees may sue thereon without joining the assignor. The case of Zabriskie v. Smith (13 N. Y. [3 Kern.], 322), explained and qualified. Demurrer to complaint. This action was brought by John T. Johnston and A. Boynton, who averred that the defendants procured the late firm of Dunkle, Johnston & Co. to make a sale of goods to them, by false and fraudulent representations, for which the plaintiffs sought to recover damages. Upon the dissolution of the firm of Dunkle, Johnston & Co. the assets and good will thereof were transferred by assignment to the plaintiffs, who thereupon brought this action. The defendants interposed a demurrer to the complaint on the grounds : First, that there was a defect of parties plaintiff in the omission of Dunkle and Dickey, who were partners in the firm of Dunkle, Johnston & Co., upon whom the deceit was alleged to have been practiced ; and, Second, that the alleged cause of action was not assignable so as to give the plainitffs the right to sue in their own names. Fithian, Clarke & Smith, in support of the demurrer. B. C. Thayer, opposed. [MAJORITY — Jones, J.] Jones, J. —The principle laid down in Haight v. Hayt (19 N. Y., 464), controls this case ; and under it the demurrer must be overruled. The case of Haight v. Hayt proceeds, so far as the point involved in the case at bar is concerned, upon sections 1 and 2 of article 1 of title 3 of chapter 8 of part 3 of the revised statutes (See opinion of Grover, J., at p. 467, and of Denio, J., at p. 474). When Zabriskie v. Smith (13 N. Y., 322) was decided, these provisions of the statute do not appear to have been called to the attention of the learned judge (Debio) who delivered the opinion. Demurrer overruled with costs, with leave to defendants to withdraw demurrer .and answer within twenty days ; if not, then judgment for plaintiffs with costs.