#### Benjamin T. Hoogland, plaintiff and respondent, *vs.*Benjamin J. H. Trask, defendant and appellant.

1. Where, upon an issue made by the denial in a reply, that the defendant was the owner and holder of a promissory note of the assignors of the plaintiff set

, up in his answer as a defense by way of set-off, otherwise than by receiving the same in order to procure it to be discounted at a bank, and to pay over the proceeds to the makers, and subsequently agreeing to procure the same to be returned, if the makers would give him another note, for a smaller amount, for the same purpose, and receiving such last mentioned note from them, without returning such first mentioned note, no evidence was given by either party, on the trial; *Held*that the production .by the defendant of the note set forth in his answer would have been *prima faete*evidence that he was the owner for a valuable consideration, and have thrown upon the plaintiff the burden of proving that it was obtained under the circumstances mentioned in the reply.

2. Where one .becomes the legal owner of a claim, by assignment thereof, it is immaterial to the debtor, whether he receives the money upon it in his own right, or as trustee. He therefore cannot move to dismiss a complaint because a plaintiff who is an assignee has omitted to set out the assignment, specially, therein, or has stated that he was a trustee, and is therefore precluded from suing except as trustee.

3. Under a general exception to a direction to a jury, on a trial, to find for one of the parties, the non-submission of any questions of fact to the jury is no ■ ground of objection when no request has been made to submit such questions of fact to the jury.

(Before Robertson, Ch. J., and Monell, J.

Heard October 18, 1866;

decided December 31, 1866.)

This was an action brought to recover ($2500) money lent by a firm (Hoogland & Van Pelt) to the defendant, the claim for which had been assigned to the plaintiff". Such loan and assignment were averred in the complaint. The answer denied both, and set up as a defense a set-off of two *541claims against the assignors of the plaintiff’s claim before the assignment to him; one for the price of a vessel, the other on a note of theirs, due before such assignment. The reply denied the purchase of the vessel, and also that the defendant was the owner and holder of the note mentioned in the answer, otherwise than by receiving the same in order to procure it to be discounted at a bank, and to pay over the proceeds to the makers. Such reply also alleged that the defendant subsequently agreed to procure the same to be returned, if the makers would give him another note for a smaller amount, for the same purpose, which they did, but such note was not returned. It was not alleged whether such first note was discounted or not, or what became of it.

On the trial, one of the plaintiff’s assignors (E. Hoogland) testified that the defendant on a certain day applied to him for a certain sum of money, ($2500,) for which he gave him his check, which was paid. On the day previous such witness had applied to the defendant for a loan of a like sum, when the latter gave him a check of a third person (W. S. Bailey) for such amount, which he. stated would be good next day. Such check never was paid, although presented, and the defendant promised the witness to make it good, but never did. The drawer (Bailey) had no funds in the bank on which it was drawn, at its date, or for a long time after-wards.

An assignment for the benefit of creditors was then offered in evidence, to the admission of which the defendant’s counsel excepted. This instrument was an assignment by the members of the firm of Hoogland & Van Pelt to the plaintiff of all their property.

The defendant’s counsel then moved to dismiss the complaint, upon the ground that the plaintiff had not sued as trustee, which motion was denied, and an exception taken to such denial.

The defendant’s counsel then offered certain papers from the files of the county "clerk, where they had been filed, for the discharge of the plaintiff and one of his assignors, (Van *542Pelt,) as insolvents, from their debts, and proved the signature of the plaintiff to various documents belonging thereto. The present claim was not mentioned in any of such papers. They were 'excluded as evidence, to which an exception was taken.

No evidence was given on the trial as to the note, or purchase of a vessel, alleged in the answer, nor was such note produced.

The defendant’s counsel requested- the court to charge the jury that a third person, (Mrs. E. Hoogland,) respecting an assignment to whom of the claim of the plaintiff on Hoogland & Van Pelt, some testimony had been given and stricken out because such assignment was in writing, was a necessary party to the action; also that the plaintiff could not recover under the complaint, because he did not bring the action as trustee. Both of which requests were refused.

• Two questions were put on the trial, oh behalf of the defendant, and excluded, to which the defendant’s counsel excepted. One to the plaintiff, as follows: “Suppose this claim now sued is collected, to where does the money go?” The other was not insisted on at the argument.

The court directed the jury to find a verdict for the whole amount, ordering judgment to be suspended, and the exception’s heard in the first- instance at general term. To both of which directions exceptions were taken for the defendant.

*Beebe, Dean & Donohue,*for the defendant, appellant.

*W. E. Curtis,*for the plaintiff, respondent.

By the Court, Robertson, Ch. J.

Upon the issue made by the answer and reply, as to the note mentioned therein, no evidence was adduced on the trial. The production of the note by the defendant would have been *prima facie*evidence that he was the owner for a valuable consideration, and have thrown on the plaintiff the burden of proving that *543it was obtained under the circumstances , mentioned in the reply.

The refusal to dismiss the complaint because the plaintiff did not set out the assignment, or state that he was a trustee; the rejection of the insolvent discharge papers of the plaintiff" and Van Pelt; the exclusion of the question as to the destination of the money collected; the refusal to charge that Mrs. Hoogland was a necessary party, or the plaintiff precluded from suing except as trustee; and the direction to find a verdict for the amount claimed, were all correct.

The plaintiff became the legal owner of the claim by the assignment, and it was immaterial to the defendant whether he received the money in his own right or as trustee. The insolvent papers only tended to establish that neither the plaintiff nor Van Pelt claimed that the amount set down in such assignment as due to the former was so due. Even if the assignment had been wholly gratuitous, it did not affect the plaintiff’s claim, unless the defendant had a good set-off of claims upon Hoogland & Van Pelt. The assignment by the plaintiff of his claim against the latter to his mother, even if proved, would not have invalidated the assignment to him of the claim in question, although it might have explained why such claim was not mentioned in his insolvent papers. She was no more a necessary party than any other *cestui que trust.*The question as to the destination of the money was one of law, and immaterial. There was no request even to submit any question of fact to the jury, and their non-submission is no ground of objection, under a general exception, to a charge to find for either party. (18 *N. Y. Rep.*558.)

There was nó evidence that the advance to the defendant had any thing to do with the Bailey check. If it had had, there was some evidence tending to show fraud. From the whole case, therefore, it appears that the direction for an absolute verdict was correct. There must be judgment for the plaintiff on the verdict, overruling the exceptions. •