Aetna Casualty & Surety Co. v. McCullough , 41 A.D.2d 161 ( 1973 )

Stevens, P. J.

Judgment entered April 18, 1972, in New York County, after nonjury trial (Helman, J.) affirmed, with costs to respondent.

Plaintiff sued as assignee of New York Telephone Company, assignor’s former employee, to recover damages occasioned the former employer by reason of defendant’s willful and wrongful conduct.

All of us are agreed on the question of defendant’s liability. The dissent would modify to reduce the judgment to the sum presumably paid by plaintiff to New York Telephone Company.

In paragraph ‘£ Eighth ’ ’ of the complaint, plaintiff alleges that in consideration ££ of a sum of money ” paid by plaintiff, New York Telephone. Company ££ duly assigned ” its claim to plaintiff.

An assignment, without reservation, is generally a transfer of one’s whole interest. The assignee acquires such interest, taking with the assignment all the right, title and interest theretofore possessed by the assignor (Meeder v. Provident Sav. Life Assur. Soc., 171 N. Y. 432). Nor does it matter that the consideration paid was less than the total of the indebtedness (supra). The loss suffered by the former employer, as found by the trial court, far exceeded $60,000. The court found that such loss was caused by wrongful acts of defendant. Thus, New York Telephone Company as the owner of the claim was entitled to sue for the entire amount of the loss. It transferred or assigned this right to plaintiff. The assignment represented a perfected transaction.

On the other hand, subrogation (of which the dissent speaks) represents a substitution in the acquisition of rights and remedies of another as to a third, person or party, and results from the payment of a debt upder necessity of avoiding a lose or further loss, The debt is treated in equity as still existing, though paid by the subrogee, and by reason of a legal fiction the subrogee is permitted to go after the person considered primarily responsible for the loss. It is a right which is never accorded to a volunteer. The extent of a subrogee’s claim is limited, generally by the amount paid in discharge of the debt.

Plaintiff, as assignee, was not limited in its cause by the actual amount of the consideration given, but' is entitled to seek enforcement of the amount specified in the assignment.

The instant case may be readily distinguished from a case such as Rosenthal Jewelry Corp. v. St. Paul Fire & Mar. Ins. Co. (21 A D 2d 160, affd. 17 N Y 2d 857). After payment of a "•doss incurred -by plaintiff, defendant sued the third party in the name of its insured. After recovering a judgment which included interest and a claim -for loss of profits suffered by the insured, the judgment being substantially in excess of the amount paid to the insured, a dispute arose. The dispute involved the accumulated interest on the original loss paid and centered around language used in a so-called loan receipt. The court considered the loan receipt a device under the subrogation provisions of the policy which enabled the insurer to sue the third party in the name of its insured. No such device is employed or involved here. Plaintiff, in the case on appeal, sued in its own name as assignee.

The assignment seems to have been total, rather than partial. The parties could have provided for disposition of any excess recovered and, in such case, their intention would control. However, that issue is not now before us.

The judgment should be affirmed, with costs.