William C. Osborne, Appellant, v. Charles F. Hughes, Respondent

William C. Osborne, Appellant, v. Charles F. Hughes, Respondent. Second Department, October 16, 1908. Assignment of land contract —• party — when assignee acting for principal may sue for earnest money. On a failure of a vendor to fulfill his contract to convey lands the assignee of the vendee, under assignments written and duly acknowledged, may recover the earnest money paid, although the original vendee and his assigns acted for the benefit of a third person who furnished the money paid. Appeal by the'plaintiff, William C. Osborne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of April, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits. Henry P. Burr, for the appellant. Leonard J. Reynolds [Louis La France, with him on the brief], for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This is an action to recover money paid on a contract for the sale of real estate;, which was not performed. The defendant entered-into the contract with Bollenbach, who, before the day of performance, assigned the contract to Page, who in turn likewise, and before the said day, assigned to the plaintiff. The assignments were written and were duly acknowledged. It appeared at the trial that the original party as vendee and the assignees of her interest all acted at the request of. Caulkins and for his benefit, and that he was behind them and furnished the moneys paid on the contract and for the assignments. At the close of the case the court declared that it thought Caulkins had the right to sue, but that the present plaintiff had no such right, and, therefore, dismissed the complaint-on the merits. I think that the learned court erred. (Sheridan v. Mayor, 68 N. Y. 30; Greenwood v. Marvin, 111 id. 423, 440; Foster v. Central Nat. Bank, 183 id. 384; Hunter v. Allen, 106 App. Div. 557) The judgment should be reversed and a new trial should be granted, costs to abide the final award of costs. I express no opinion as to the merits of the controversy.' Woodward, Hooker, Gaynor and Rich, JJ., concurred. Judgment reversed and new trial granted, costs to.abide the final award of costs.