#### Stephen M. Chester, Resp’t, *v.*Frances A. Gesner, Impleaded, etc., App’lt.

*(Supreme Court, General Term, First Department,*

*Filed May 24, 1889).*

Assignees—Priority of right of—Not dependent upon acceptance of ASSIGNMENT BY TRUSTEE.

The defendant Gesner loaned to defendant Chambrun certain sums of money, and took an assignment of all his interest in monies due, or to become *due,*for services under an *agreement made*with the defendants to a certain other action. He covenanted with her that he had not theretofore made any assignment of these fees. This assignment was duly accepted by the trustee appointed in the action, and who held the property out of which the assigned demands were to be paid. Defendant now claims, by virtue of the representation, and the acceptance of the assignment by the trustee to be entitled to a priority of payment over other persons to whom preceding assignmentshnd been made by Chambrun. *Meld,*that the rights of defendant are in no manner distinguishable from those of the other claimants, for they were not in any way responsible for the un'ruthful representation of Chambrun, in that it was unauthorized, and that the acceptance of the assignment by the trustee to whom the property was previously conveyed, did not vest any greater interest in the defendant, as between herself and the preceding assignees, than that derived from the assignment itself.

Appeal from a judgment recovered on).- the report of a referee.

Thornton, *Earle & Kiencll,*for app’lt; *Douglas Campbell*and *Edward Winslow Paige,*for resp’t.

Daniels, J.

The appellant loaned to the defendant, Chambrun, $10,000, on the 31st of August, 1881, and, in consideration thereof, he assigned and transferred to her all his right and interest in and to the fees and such moneys as should become due for services, or compensation, in an action in the circuit court of the United States for the *235southern district of New York, against Nelson Chase and others, and also all his right and interest to moneys due, or to become due, for services or compensation under any settlement, made with any, or all, of the defendants in that action, and he covenanted with her that he had not, theretofore, made or executed any assignment of these fees, or this compensation, to any person whomsoever, or any part or portion of the same. This assignment was, on the same day, accepted by the defendant, Elliott, who held the property out of wrhich the assigned demands were to be paid, as trustee for the defendant, Chambrun, and the heirs who were entitled to share in the proceeds of that property. This representation contained in the assignment, together with the acceptance of it, have been urged as giving the appellant a priority of payment over persons to whom preceding assignments had been made by Chambrun out of his interest in the estate, but whose assignments had not been accepted by the trustee.

These facts, however, in no manner legally distinguish the rights of the appellant from those of the other claimants, for they were not responsible for the untruthful representation of the defendant, Chambrun, that he had made no other assignment of his interest, or any part of it, to any other person. What he, in this manner, stated, they in no way authorized, and they were not responsible for his acts or representations in this respect. Neither did the acceptance of the assignment by the trustee, to whom the property had previously been conveyed, vest any greater interest in the appellant, as between herself and the preceding assignees, than that derived by her from the assignment itself. The instruments preceding the execution and delivery of this assignment, transferred to „ other persons fixed portions of the fund, or property, the defendant, Chambrun, had become entitled to receive.

That, under the authorities, was the effect of the execution and delivery of the respective instruments preceding the assignment in this manner delivered to the appellant. This point has been considered already in the appeal taken by the heirs from this judgment, and the authorities have been there presented sustaining this conclusion.

' The objection that interest was not legally allowed upon the amount found due, under the agreement of the defendant Chambrun with Chatfield, has been considered and concluded not to be supported, under the facts as they were found by the referee. But, upon the second claim allowed to the defendant Schermerhorn, it has been considered that interest should not have been allowed prior to the 3d of April, 1888, for the reason that no fund had, previous to that time, accrued out of which his $30,000 was payable, and that interest could not legally be allowed upon it until *236the fund had accrued out of which it was entitled .to payment from the proceeds of this property.

. The objection to the allowance of the claim in favor of Le Bourgeois, that the assignment transferred no interest tó him, has arisen out of a misapprehension of the language of that assigment, for it did, in point of fact, transfer to him seven and ‘one-half per cent of the forty-seven and one-half per cent given to Chambrun, in the event of the recovery of the property for the Jumel heirs, and such a recovery as was contemplated for the consummation of these rights, was secured by the adjustments which took place and were authorized by the power of attorney executed and delivered- at the same -time the agreement was made between the heirs and the defendant Chambrun.

The objection to the allowance of two and one-half per cent upon the Griswold claim has already been considered in the principal appeal, and requires nothing further to be said upon that subject at this time. Neither can any more favorable disposition be made of the case in favor of this appellant than has already been suggested, by excluding interest upon the $30,000 allowed to the defendant Schermerhorn from the 28th of August, 1880, to the 3d of April, 1888.

In that respect, the judgment should be modified, and, as" so modified, affirmed, without costs to either of the parties.

- Yan Brunt, Ch. J., concurs.