First Department, December, 1916.

[Vol. 175. plaintiff and applied on the company's indebtedness to him. It is essential that there shall be a consideration for an equitable assignment; but there was abundant consideration here. It is well settled that either a written or parol equitable assignment of a debt, claim or chose in action, if founded on a good consideration, is valid and enforcible; and that no particular form of words is necessary to constitute such an assignment but that any words will suffice which show an intention to transfer the debt, claim or chose in action. (Williams v. Ingersoll, 89 N. Y. 508; White v. Hoyt, 73 id. 505; Brill v. Tuttle, 81 id. 454; Fairbanks v. Sargent, 117 id. 320; York v. Conde, 61 Hun, 26; Rupp v. Blanchard, 34 Barb. 627, 629; Muir v. Schenck, 3 Hill, 228.) There can be no doubt but that a parol assignment can be made by the members of a board of directors of a business corporation, for a sufficient consideration moving to it, which, when acquiesced in as is shown here, by the corporation, and in effect ratified, for the ratification should not be confined to the mere advancement of the money, but should be held to embrace the arrangement under which the advances were made, will be enforced by a court of equity. (See Melledge v. Boston Iron Co., 5 Cush. 158; Groh's Sons v. Groh, 80 App. Div. 85.) The point presented for decision is, did the company intend that these moneys, when collected, should belong to the plaintiff, or did it merely promise to reimburse him when it collected the accounts?

I am of opinion that the plaintiff's company intended that these moneys as soon as collected should belong to him. If there be any ambiguity with respect to the formal action of the board of directors it should be resolved in the light of the former written direction to the defendant to pay the moneys over to the plaintiff as he had done in other instances. There is no better rule for resolving any doubt with respect to what was intended than to show that what was done and acquiesced in was what was intended. (See Williams v. Ingersoll, supra; Nicoll v. Sands, 131 N. Y. 19, 24; Insurance Co. v. Dutcher, 95 U. S. 269.) The defendant understood the agreement as the company and plaintiff intended, as is shown by his prior action in accounting to the plaintiff, and by his final letter to the plaintiff, to which reference has been made, in which he

App. Div.]

First Department, December, 1916.

credited plaintiff with the moneys but asserted offsets. The undertaking of the Hofferberth-Troy Company with the plaintiff was not to reimburse him when these moneys were collected, but that the moneys should be his when collected. The plaintiff does not claim that the accounts were assigned to him, although that was urged on the trial. He now contends that it was intended that the moneys when collected should belong to him. The claims, therefore, were to be collected by the defendant as the agent of the company; but he collected them with full knowledge that the surplus moneys when collected by him belonged to the plaintiff. It was, therefore, his duty, on receiving notice of this agreement between the plaintiff and the board of directors, and the formal written direction, to pay the money over to the plaintiff. (See Brill v. Tuttle, 81 N. Y. 454.) In effect the claims in the hands of defendant for collection were impressed with a trust in favor of plaintiff which made it the duty of the defendant to pay over to the plaintiff the surplus of the moneys collected after deducting the expenses of operating the steamer. (Matter of Carpenter, 131 N. Y. 86; Hoffman House v. Foote, 172 id. 348, 355.)

Second. No question asked of the plaintiff, as a witness for himself, with respect to his agreement or arrangement with the board of directors of his company was excluded; but after he had testified and introduced the resolution of the board of directors, the material parts of which have been stated, he called two directors of the company, and questioned them for the purpose of showing that prior to the adoption of said resolution of the board of directors there were conversations between the members of the board of directors and the plaintiff, by which it was understood and agreed that the plaintiff was to advance money for the running expenses of the company and that the freights earned by the steamer were to be paid to him; and that he was to have the right to collect the freight money; and that there was in effect an oral assignment to him of the claims for moneys earned by the steamer. Counsel for the plaintiff contended, in support of the evidence thus offered, that it was the intention of the board of directors in adopting the resolution to approve the oral agreement, arrangement and assignment theretofore made between the members of the board

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[Vol. 175.

and the plaintiff. All questions on this subject, calling for conversations between the directors themselves and between them and the plaintiff, concerning these claims and the collection thereof, and with respect to who was to collect them and retain the money, were objected to and the objections were sustained; and the plaintiff excepted.

I am of opinion that the evidence so excluded was competent and should have been received. If it had been received it might have been more than cumlative and might have shown more fully than plaintiff's testimony that there was a verbal understanding and agreement between the plaintiff and the directors by which he was to advance the money necessary for the running expenses of the company, and in consideration therefor was to collect and apply on account of such advances the moneys earned by the steamer. If that had been shown it could be argued with greater force that the effect of the resolutions was to ratify that arrangement; for although the resolutions contain no express recital of such an agreement they expressly ratify plaintiff's action in retaining and crediting, on account of his advances, moneys received from the sale of lumber and timber; and the resolution with respect to the application, in payment of money borrowed by the plaintiff, of any moneys collected from outstanding indebtedness, and with respect to such moneys being retained by him, which is somewhat indefinite if not ambiguous, would have thereby been rendered clear.

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

CLARKE, P. J., DOWLING, PAGE and DAVIS, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

App. Div.]

First Department, December, 1916.

HELEN HUMMEL, as Administratrix, etc., of HERMAN HUMMEL, Deceased, Respondent, v. L. S. FISCHL'S SONS, INC., Defendant, Impleaded with AKRON BUILDING COMPANY, Appellant. First Department, December 15, 1916.

Master and servant - negligence

death of employee struck by

descending elevator-practice — reference to casualty company motion for withdrawal of a juror - effect of death of trial justice after verdict but prior to decision of motion to withdraw juror―testimony as to credibility of representative of casualty company damages-new trial-newly-discovered evidence-application for withdrawal of juror after general verdict — mistrial.

In an action to recover for the death of the plaintiff's intestate, who, while employed by the defendant to paint the inner side of a sill at the entrance to a service elevator was struck and instantly killed by the descending elevator which was being operated by an employee of another defendant, the owner of the building at whose instance the painting was being done, it appeared that the decedent's co-employee was the only eye-witness to the accident; that he made statements with respect to the accident to an employee of the casualty company; that upon the crossexamination of said employee it was shown, without objection, that at the time he procured the statement he was in the employ of the casualty company; that he procured it at the instance of the attorney for the owner, and in the interest of his employer, and that counsel for the owner thereupon moved for the withdrawal of a juror on account of the reference to the casualty company. After the rendering of a verdict, but before the decision of the motion, the trial justice died. Held, that, since there was a question of fact with reference to the material statements claimed to have been made by the witness to the accident, inconsistent with his testimony, depending upon a conflict between said testimony and that of the representative of the casualty company and an interpreter, it was proper as bearing upon the credibility of the representative of the casualty company to show that in procuring the statement he was endeavoring to further his own interest by serving his employer, and the fact that this may have indicated to the jury that his employer was interested in the action did not render the evidence incompetent;

That the reference to the casualty company in no manner prejudiced the rights of the owner;

That notwithstanding the owner's failure to take an exception, the Appellate Division may, if there was error of a prejudicial nature, award relief.

It appearing that the decedent was in good health, twenty-seven years of age, and earning $22 per week, nearly all of which he gave to his wife,

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[Vol. 175.

who was only twenty-three years of age, and that he left a child four weeks old, a verdict of $11,250 was not excessive.

A motion for a new trial on the ground of newly-discovered evidence consisting of the testimony of an employee of the owner was properly denied, because of a failure to show due diligence in ascertaining the whereabouts of said witness.

It is not within the power of a trial court to grant an application for the withdrawal of a juror after receiving a general verdict, and, hence, a motion to vacate a judgment and to have a mistrial declared on the ground that a motion for leave to withdraw a juror was submitted to the trial justice, who died before its decision, is without merit. The fact that a defendant has been deprived by the death of the trial justice of the privilege of having a motion for a new trial heard informally on the minutes of the court, is no ground for declaring a mistrial, because such a motion may be made at Special Term on a case containing exceptions, pursuant to the provisions of section 1002 of the Code of Civil Procedure.

THREE APPEALS by the defendant, Akron Building Company, on separate records: (1) From a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 15th day of January, 1916, upon the verdict of a jury for $11,250; (2) from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 3d day of June, 1916, denying its motion for a new trial made upon the minutes; and also its motion for a new trial on the ground of newly-discovered evidence; (3) from an order made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 25th day of August, 1916, denying its motion to vacate and set aside the judgment and verdict herein and to declare the trial a mistrial.

The order of June third appealed from was made at a Special Term, not presided over by Mr. Justice BRADY who had tried the case, he having subsequently died.

Theodore H. Lord, for the appellant.

Jacob Manheim, for the respondent.

LAUGHLIN, J.:

This is a statutory action to recover for the death of plaintiff's intestate, who, while in the employ of the defendant, L. S. Fischl's Sons, Inc., in whose favor a verdict was ren