Seymour Cooley Respondent, v. The Howe Machine Company, Appellant

Seymour Cooley Respondent, v. The Howe Machine Company, Appellant. (Argued May 23, 1873; decided June 10, 1873.) On the 18th October, 1871, one Edwin D. Barber being indebted to defendant in the sum of $36,439.34, sold and assigned to it certain personal property at a valuation of $17,880.24 to apply in payment, and also assigned and transferred property amounting to $34,509.36 as collateral security for the payment of the balance of the indebtedness, and also to pay certain other debts of the assignor set forth in a schedule annexed to the assignment, not exceeding the amount therein specified. The assignor was authorized to take back the property so transferred as security, upon and after payment of defendant’s claim and of the debts named in the schedule. In the schedule was set out a note to plaintiff for $600, without stating date, time of payment or whether on interest. Plaintiff had, in fact, two notes against Barber, one of $500 and interest, dated June 29,1870, and one of $100 and interest, dated June 10, 1871. This action was brought to recover the amount of the notes. Plaintiff obtained judgment for the whole amount, principal and interest. Held, that the assignment was' a fixed arrangement for plaintiff’s benefit, which could not be changed without payment of the plaintiff’s debt, so far as covered by it, and that the action was maintainable (see Ga/msey v. Rogers, 47 N. Y., 233), but that defendant was not liable beyond the $600, with interest from the date of the assignment. Edward Harris for the appellant. John Van Voorhis for the respondent. [MAJORITY — Peckham, J.,] Peckham, J., reads for reversal and new trial, unless plaintiff consents to deduct interest from date of notes to date of assignment, and, if so modified, judgment affirmed. All concur. Ordered accordingly.