Opinion
March, 1910.
Goetz Goetz (Maurice B. Rich, of counsel), for appellants.
Joseph Wilkenfeld, for respondent.
The action was brought by plaintiff to recover the amount of an order drawn by one Max Cohn, a contractor, on Cohen Kranz, the owners of certain premises in Brooklyn, upon which said Cohn had, under a building contract, performed certain work. The action is against said Cohen Kranz and against the sureties on the undertaking to discharge the lien of said order. The evidence showed a substantial performance of the terms of the contract, sufficient to justify the finding of the jury in favor of the plaintiff in that regard. The appellants contend, however, that plaintiff cannot recover as assignee of Cohn, inasmuch as the contract provides that the contractor, Max Cohn, "shall not assign or transfer his interest in the contract, or any right thereunder, without the written consent thereto of Cohen Kranz first procured." It is conceded on the record that the contract was assigned to plaintiff. No evidence was offered of any consent by Cohen Kranz, and the defendants pleaded as an affirmative defense that the assignment was made without such consent. If plaintiff has any standing in court, it is as assignee of Cohn's right to be paid certain moneys under the contract; and the failure of the plaintiff or his assignor to obtain the consent of Cohen Kranz to such assignment would seem to be fatal to plaintiff's right of recovery.
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Present: SEABURY, GUY and WHITNEY, JJ.
Judgment reversed and new trial ordered with costs to appellant to abide event.