PRACTICE REPORTS IN THE SUPREME COURT AND COURT OF APPEALS OF THE STATE OF NEW YORK. BY NATHAN HOWARD, JR., COUNSELLOR-AT-LAW, NEW York. VOLUME L. ALBANY: WILLIAM GOULD & SON, LAW BOOKSELLERS AND PUBLISHERS. 1876. Entered according to act of Congress, in the year eighteen hundred and seventy-six, BY WILLIAM GOULD & SON, in the office of the Librarian of Congress, at Washington. Rec. May 26, 1976 THE ARGUS COMPANY, PRINTERS AND STEREOTYPERS, ALBANY, N. Y. PRACTICE REPORTS. COURT OF APPEALS. CHARLES DEVLIN, appellant, agt. THE MAYOR, &c., OF THE CITY OF NEW YORK, respondents, and SAMUEL DONALDSON and others, appellants. Findings of fact by a referee, when conclusive — assignability of contract — constitutional law. The conclusions of a referee upon the evidence and his findings of facts, not disaffirmed by the court below in reversing his judgment, are not reviewable by this court. They are concluded upon every question of fact by the findings of the referee and the judgment of the court of original jurisdiction. An assignment by a contractor for work contracted to be done for a city, of the amounts which would have become due from the city from time to time, made before the doing of the work or the performance of the conditions upon which the payments depended, would, under the liberal rule permitting the assignment of choses in action now prevailing, be valid. Expectancies as well as existing rights of action may be assigned, and the right of the assignee will be protected and enforced at law. The assignment may include all contingent and incidental benefits or results of an executory contract, as well as the direct profits or earnings under it, and thus entitle the assignee to the damages resulting from a violation of its terms. The right of action for a breach of the contract, resulting in pecuniary loss to the contractor, would survive to the personal representatives of the aggrieved party—and that is one test of the assignability of contracts and choses in action. The assignability of a contract must depend upon the nature of the contract and the character of the obligations assumed, rather than the supposed intent of the parties, except as that intent is expressed in the agreement. Parties may, in terms, lawfully prohibit the assignment of any contract, |
