#### James E. Conor, Joseph Cahn *et al.,*plaintiffs and appellants, *vs.*Herman Hernstein, defendant and respondent.

1. In order to render one an assignee of a judgment, it is at least necessary that he should have agreed to become such, and have furnished the necessary sum before the assignment is delivered and the money paid to the attorney for the assignor.

2. The execution by a creditor of an assignment of a judgment in1 blank, and subsequently by agreement with the judgment debtor, filling it up with the name of a third person, will not legally make the latter an assignee, where the real debtor has, under the coercion of a levy, actually paid the amount to the judgment creditor. Such debtor cannot take a blank assignment after such payment, so as to make any one assignee whom he may afterwards select for the purpose.

3. A judgment cannot so be kept alive after being satisfied in law.

(Before Robertson, Ch. J. and Garvin, J.)

Heard November 5, 1866;

decided February, 1867.

This was an appeal from -an order denying a motion on behalf of one of the plaintiffs (Cahn) to set aside an execution upon a judgment for costs, obtained by the defendant against him and others, issued by an alleged assignee thereof, (L. Russell.) The motion was originally made upon affidavits, and the justice by whom it was first heard directed a reference to a referee, to examine witnesses respecting the question whether another of the plaintiffs (Aaron S. Solomons) had not paid such execution, and to' report the testimony, with his opinion thereon, to the court. Such referee took such testimony and reported the same to the court, with his opinion, not only that such plaintiff Solomons did not pay such judgment, but that a third person (Russell) had purchased and taken an assignment of it, and was its true owner. Ho mention was made, in the order appealed from, of the affidavits upon which the motion was first made. After reciting the reference and report, it merely declared that upon reading the latter, the non-payment of such judgment by the plaintiff Solomons, and its purchase by and assignment to Russell, satisfactorily appeared to the court by such report.

*553An execution had been issued upon such judgment two days after it was recovered, and levied upon the interest of the plaintiff Solomons in a firm of which he was a member, (ISTewman & Solomons.) A motion made on his behalf to set aside such judgment and execution was, on the 28th of June, denied, about one o’clock in the afternoon. At that time a sale of the interest so levied on was advertised for the following morning. The defendant’s attorney refused to countermand such execution and sale, unless the whole amount due was paid before three o’clock of that day. The attorney of the plaintiff Solomons then drew an assignment of the judgment in question, leaving the name of the assignee blank, and delivered it to the defendant’s attorney to procure the same to be executed by his client, which he did on the same day.

On that day also, before three o’clock, the attorney of Solomons procured from him the check of his firm (Uewman & Solomons) for the amount due on such judgment, having previously paid costs and sheriff’s fees, and paid it to the' attorney for the defendants, who thereupon delivered to him such assignment in blank. Russell was at some time applied to by Solomons to b.ecome assignee of such judgment, and his name was inserted in the assignment as such, and he refunded to Solomons the amount paid by him. Russell testified, on his cross-examination before the referee, that this was on the 29th or 30th of June, which was after the assignment was executed. He had previously testified, on his direct examination, that he had brought to his notice to become assignee ten or twelve days before making some motion, which he did not specify; he could *not speak positively.*Also, that on the the 28th of June he met Isaacs, the attorney for the plaintiff Solomons, in the street, and told him he might draw the assignment in his name and attend to it for him. He refunded the amount paid on the 30th of June before he went to see about the assignment at the office of Isaacs. The defendant’s attorney testified that he handed the assignment to Solomons the day *554after it was executed; that *Russell’s name was not in it*when • it was executed, and that it was left blank *at the request of Solomons.*He did not think Russell’s name was then mentioned. Isaacs also did not recollect having mentioned Russell’s name before he gave the check. Solomons, in giving such check to his attorney, stated that he lent it to Russell, who was not present. It was impossible to have found Russell in time to pay such money before the hour fixed. Russell testified that when Solomons wanted him to purchase the judgment, he told him that it would be necessary to pay some costs, and Russell, in reply, told Solomons if he were not on hand, to pay it, and he would refund it. He also, after stating that Solomons asked him to “purchase the assignment,’’ on the 29th or 30th of June, said that *“it*was in the hands of Mr. Isaacs, It was at Isaac’s pffiee,” where he “called in special relation to that matter;” also that after paying Hewman' & Solomons the amount paid by them, which was on the 30th of June, he asked where he “could see the *'¡paperf*and Solomons said *“it*was with Isaacs.”

G. *W. Stevens,*for the plaintiff Cahn, appellant.

*W. S. Arnoux,*for the defendant, respondent.

By the Court, Robertson, Ch. J.

The order of reference made in this case did not dispose of the original motion, nor did it authorize the referee to decide any thing bearing on its merits. It only authorized him to take testimony and report his opinion as to one fact, to wit, payment by the plaintiff Solomons of the judgment in question. He, however; thought proper to pass upon another fact beyond the scope of his authority, to wit, *a purchase of such judgment*by the claimant Russell. The original motion, therefore, still remaining pending and undetermined, the order appealed from was made, based, as appears by its recital, solely on the report of the referee, without regard to the original affida*555vits, and reciting that the facts, as found or stated by the referee, *“satisfactorily appeared”*to the *court from such report.*It was evidently an oversight or error to pass upon the merits of the motion without considering all the papers upon which it was founded. That alone would justify the vacation of the order appealed from, accompanied • by a direction that the motion be reheard on all the papers. But as we have before us all the evidence upon which it could be reheard, it is not improper for us to examine it upon its merits, and make whatever order should properly have been made at special term.

As this case turns on the question whether Russell became virtually assignee of the judgment in question at the time of the delivery of the assignment of it to Mr. Isaacs, and the payment by the latter of the same amount as was due on it to the defendant’s attorney, it is necessary to scrutinize the testimony bearing on that question. In order to render Russell such assignee, it was at least necessary that he should have agreed to become so, and to have paid the necessary sum, before the assignment was delivered and the money paid to the defendant’s attorney; since from such agreement alone could have been derived any authority possessed by Isaacs to borrow the money for Russell from golomons, to pay it to the defendant’s attorney, and take the assignment in Russell’s name. Taking .an assignment in blank, and subsequently, by agreement, filling it up with Russell’s name, would not legally make him an assignee after the real debtor had, under the coercion of a levy, actually paid the amount. The latter could not take a blank assignment so as to make any one assignee whom he after-wards should select for the purpose. The judgment could not so be kept alive after being satisfied in law.

I think the weight of the evidence before us establishes that it was not until after the payment of the amount of the judgment to Adams, and the execution of the assignment, that Russell agreed to become assignee.

*556[After scrutinizing other evidence upon the time when Russell agreed to become assignee, the court proceeded.]

I think it, therefore, very clear that although there may have existed an intention to procure an assignee, the decision of the motion came by surprise, so that the plaintiff Solomons had no time to procure the assent of Russell to become assignee, although he may have believed that, as a friend, he would become so; that the assignment was accepted and executed in blank, with the design of filling it up with the name of whoever might become assignee in case Russell declined; that Solomons, believing he retained the right of transferring the judgment by means of the blank assignment, requested Russell to by *it,*and not the judgment, informing him that *the paper*was at the office of Mr. Isaacs; that Russell did so by refunding the money Solomons had paid, and afterwards, first seeing Mr. Isaacs casually in the street, asked him to make him the assignee, and then called on him for *the paper.*This reconciles all the apparent contradictions in the testimony.

How far any one is authorized by law to insert a name in a blank assignment, after it had been acknowledged before an officer without it, so as to make the assignor covenant, under seal, with a person whom he did not know would be the assignee, as to the amount due on such judgment, it is not necessary now to decide; nor is it necessary to pass upon the effect of the exceptions in the assignment, or the actual levy upon the property of Solomons. It is enough that at the time of the payment of the judgment by him, no one had agreed to become assignee of it and' pay the purchase money therefor.

The order appealed from must therefore be reversed, and the execution issued in favor of Russell, the supposed assignee, set aside.