Bowery Nat. Bank of New York v. Wilson

• Decision Date: 02 December 1890
• Citation: 25 N.E. 855,122 N.Y. 478
• Parties: BOWERY NAT. BANK OF NEW YORK v. WILSON et al.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 478

25 N.E. 855

BOWERY NAT. BANK OF NEW YORK

v.WILSON et al.

Court of Appeals of New York, Second Division.

Dec. 2, 1890.

Appeal from a judgment of the general term of the supreme court of the first judicial department, which affirmed a judgment of the special term for damages in favor of the plaintiff. In 1885, Alexander V. Davidson was the sheriff of the city and county of New York, his term expiring December 31st of that year. September 10, 1885, the plaintiff discounted for Davidson his promissory note for $4,500, which was indorsed by three accommodation indorsers. To secure the payment of this loan, Davidson executed and delivered to the plaintiff a written assignment of a portion of such sums of money as might be due him for services to be rendered as sheriff during the month of December of that year, which assignment was filed September 12th with the comptroller of the city. In December the sheriff rendered services for which, in January, 1886, he was audited and allowed the sum of $4,485.75. Prior to the commencement of this action John Tully was appointed receiver of Davidson in proceedings supplementary to execution upon several judgments, and entered on the discharge of his duties as such. The plaintiff and the receiver, claiming the money, the comptroller refused to pay it to either, and March 30, 1886, this action was begun against the mayor, aldermen and commonalty of the city to recover the amount audited. In December of that year the city was permitted by an order to pay the amount of the clain into court, and thereupon Tully and two other persons (the nature of whose claim does not appear) were brought in as defendants. The case was tried at special term, which directed a judgment in favor of the plaintiff, and, among other things upon which its decision was based, it found that January 22, 1886, Dividson orally assigned his said claim to the plaintiff for the payment of the money secured by the note. Upon appeal to the general term this judgment was affirmed.

Henry D. Hotchkiss, for appellants.

James R. Marvin, for respondent.

FOLLETT, C. J., ( after stating the facts as above.)

The finding that an oral assignment of the claim was made by Davidson to the bank on the 22d of January, 1886, is challenged by the appellants on the ground that there is no evidence tending to sustain it. The defendants requested the court to find the converse of this proposition, excepted to the finding made, and present a case which contains all of the evidence, and so are in a situation to require a review of the finding. After an examination of all of the evidence, we are convinced that no assignment, except the written assignment, was ever made of this claim, and that the most that occurred in January was the recognition of the existence of the previous assignment. No words are found in the evidence which indicate an intent on the part of Davidson to make a present assignment of his claim to the plaintiff; and, had there not been a previous written assignment, we think no one would assert that any words used in January amounted to a transfer of the claim. This brings us to the consideration of the question whether an assignment by a sheriff of such fees as he may become entitled to receive from the state or county for public services thereafter to be rendered, is valid. It is settled in this state that an assignment by a public officer of his unearned salary is contrary to public policy and void. Bliss v. Lawrence, 58 N. Y. 442;Billings v. O'Brien, 4 Daly, 556, 45 How. Pr. 392, and 14 Abb. Pr. (N. S.) 238. The same rule is established in England, and in some of the United States. Hill v. Paul, 8 Clark & F. 295; Cooper v. Reilly, 2 Sim. 560; Wells v. Foster, 8 Mees. & W. 149; Beal v. McVicker, 8 Mo. App. 202;Bangs v. Dunn, 66 Cal. 72,4 Pac. Rep. 963; Pom. Eq. Jur. § 1276; Story, Eq. Jur. (13th Ed.) § 1040 d; Greenh. Pub. Pol. rule 297.

In Bliss v. Lawrence, supra, it was said: ‘Salaries are, by law, payable after work is performed, and not before, and while this remains the law, it must be presumed to be a wise regulation, and necessary, in the view of the law-makers, to the...