Robert Ridell, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

Robert Ridell, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. (Argued April 17, 1878; decided April 23, 1878.) This was an action to recover the value of a canal-boat alleged to have been destroyed by fire through the negligence of defendant. The complaint alleged that plaintiff was the owner of the boat. It appeared that he was in possession at the time of the fire under a contract of purchase, by which a bill of sale was to be executed to him by the vendor, upon payment of the purchase-money as specified in the contract, for which purchase-money plaintiff had given his notes. Plaintiff had expended money in repairing the boat. Upon the trial plaintiff gave in evidence an assignment to him from the owner of all claims against defendant growing out of the fire. This was objected to, but not on the ground of any defect in the complaint. Defendant moved for a nonsuit upon the ground among others that plaintiff was not the owner of the boat, and did not have such an interest in it as entitled him to maintain the action. The motion was denied. Held, no error ; that even if plaintiff did not have such an interest at the time of the fire, the subsequent assignment transferred to him the claim of the owner, and the assignment not having been objected to on the ground of a defect in the complaint, in that plaintiff had not brought this action thereon, but only as owner, the complaint must be considered sufficient here ; also, that at the time of the fire plaintiff had an interest which would entitle him to recover some damages, and therefore the motion was .properly denied. Other questions were disposed of upon the facts in the case. William H. Adams for appellant. H. V. Howland for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed.