#### Andrew C. Imbrie, Appellant, *v.*Schlicht Combustion Process Company, Respondent.

First Department,

March 5, 1909.

Assignment — evidence insufficient to show invalidity of assignment of claim by corporation.

Where the claims of a corporation are assigned by a writing under seal, signed by the vice-president and attested by the secretary, it is *prima facie*evidence of the title of the assignee.

A debtor sued by the assignee and defending solely upon the ground that the assignment was invalid, is not entitled to a dismissal of the complaint by merely showing that the written assignment was not affirmatively authorized by a resolution of the directors.

Appeal by the plaintiff, Andrew C- Imbrie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 27tli day of July, 1906, upon the report of a referee dismissing the complaint herein.

*Emanuel S. Cahn*of counsel *[Daniel C.*Beerman, attorney], for the appellant.

*M. Cleiland*Milnor, for the respondent.

Clarke, J.:

The action was brought to recover $921.06 for goods, wares and merchandise sold and delivered to the defendant by the *A.*A. *676Grilling Iron Company, a New Jersey corporation. The complaint alleged that prior to the commencement of this action the cause of action herein sued upon was for a valuable consideration, duly assigned, transferred and set over to this plaintiff by said corporation, the then owner .thereof. The answer denied that defendant . had any knowledge or information sufficient to form a belief as to any of the matters stated in the 3d and 7th paragraphs of the complaint, .which were those setting.up the assignment, and the complaint was dismissed upon the ground that there had been no valid assignment made and executed or delivered to plaintiff. The plaintiff offered in evidence as the assignment upon which he sued a paper writing reading as follows :

> “ *Jwie*25, 1901.

> “ For value received we hereby sell, transfer and set over our account against the Schlicht Combustion Process Company for $921.06 and interest to Andrew C. Imbrie of New York City.

> “A. A. GRIPPING IRON COMPANY.

> “ (Signed) Thos. H. Williams,

> “ *V.-Pres.*

> “ (Seal) (A. A. Grilling Iron Co.)

> “Attest:

> “ (Signed) Isaac C. Ogden,

> “ *Secy.”*

Here is an assignment under seal, signed by the vice-president and attested by the secretary, made by the corporation for the benefit of the corporation for the purpose of instituting suit. That was *prima facie*evidence that the assignment was the act of the corporation. In addition, the'by-laws in evidence provided: “The president or vice-president of this company is hereby authorized to sign the corporate name and affix the corporate seal of this company to all contracts and conveyances made by this company whenever the same may be necessary.” There is no evidence attacking this assignment other than that the minutes do not disclose affirmatively that the directors authorized the assignment. But the defendant is not concerned. It is not attacking the original transaction, the debt due by it to plaintiff’s assignor for goods, wares and merchandise bought by defendant from plaintiff’s assignor and not paid for. It attacks the assignment of that claim evi*677denced by an instrument under seal and signed and attested by the executive officers of a private business corporation authorized by the by-laws to so sign and attest “ all contracts and conveyances ” on the ground that no vote of the directors has been shown. It might as well require a special vote of directors to authorize any sale over a counter. A judgment upon this assignment, sustained and supported by the testimony of the officers of the company as it is, would be a bar to any other recovery upon the assigned cause of action. The claim that the minutes do not show action by the directors is on the same plane as the inquiry into the actual consideration for the assignment, which the referee permitted over objection and exception, upon the ground, that it was admitted merely to impeach the witness, and yet was used in his opinion as ground for his conclusion.

In *Quackenboss*v. *Globe & R. F. Ins. Co.*(177 N. Y. 71) the corporation was being sued on its contract, and it defended upon the ground that the paper was not its contract and the seal had been put thereon without proper authority. The court said: *“*It is an ancient and well-established rule of law that where the seal of a corporation is affixed to a contract or written instrument, to which such corporation is a party, and it is signed by the president and secretary or other proper officers, it will be presumed that such officers did not exceed their powers, as the seal is *prima faeie*proof that it was attached by proper authority, and it lies with the party objecting to its execution to show that it was affixed surreptitiously or improperly.”

In the case at bar, the defendant has not shown that this seal was attached to this instrument either surreptitiously or improperly, and the instrument must, therefore, be given full force and effect. The finding of the referee that the instrument had never been delivered to the plaintiff was clearly against' the evidence.

The judgment appealed from should be reversed and a new trial ordered before a new referee, with costs to the appellant to abide the event.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Judgment reversed, new trial ordered before another referee, with costs to appellant to abide event. Settle order on notice.