Nudelman v. Insulite Co. , 252 A.D. 642 ( 1937 )

Townley, J.

(dissenting). It is very doubtful whether, to use the words of the complaint, the “ turning over ” of rights under an executory contract upon which no present cause of action has arisen is the sale of such a chose in action as would bring the transaction under section 85 of the Personal Property Law. This point, however, need not be decided in this case. The pleading is framed on the assumption that if a chose in action has been “ turned over ” or assigned or sold to the defendant, the defendant has accepted the transfer and furthermore has substantially performed the contract which was transferred to it in so far as the assignee’s duty to the original buyer of the lumber was concerned. The theory of the complaint is really, therefore, nothing more than a demand for payment to the extent that the assignee has collected from the original buyer. There can, of course, be a denial of the fact of an assignment of the contract and there is such in this answer. The plea of the Statute of Frauds, however, is no answer to such a complaint. If the defendant accepted the assignment, the plaintiff has fully performed within the meaning of section 85, assuming its applicabihty. Any further plea of the statute is meaningless. It cannot be that if in this case defendant purchased the plaintiff’s contract and has collected the proceeds, it can retain them because the original transfer was not in writing.

The fact that allegations of collections made by defendant against the contract are denied does not make the Statute of Frauds plead-able either, because plaintiff’s rights are not affected by anything except the acceptance of the assignment by the defendant. From that moment plaintiff has fully performed and is not concerned with anything except the proper performance of the assignee’s duties. The denials in the answer cannot be considered to make good the affirmative defense. That defense must be an answer to the complaint as pleaded.

The order should be reversed and the motion to strike out the first separate and complete defense should be granted.

Dore, J., concurs.

Order affirmed, with twenty dollars costs and disbursements.