SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
October 31, 1968
ACME BLACKTOP PAVING CORP., RESPONDENT,
BROWN & MATTHEWS, INC. ET AL., APPELLANTS, ET AL., DEFENDANT
Appeal from order of Erie Special Term, denying motion to dismiss complaint in action on contract.
Bastow, P. J., Williams, Del Vecchio, Marsh and Witmer, JJ.
Order unanimously reversed, with costs, and motion granted. Memorandum: The assignment by plaintiff to United States Fidelity & Guaranty Company of all its right, title and interest to moneys due or to become due under the contract with defendants-appellants, including all claims for extra work, is complete and unequivocal. As the assignment now stands, plaintiff has no interest in the proceeds of the contract and therefore may not maintain the present action. (Cummings v. Morris, 25 N. Y. 625, 627.) If the assignment in its present form does not correctly express the intention of the parties, plaintiff may seek reformation of the instrument. (6 N Y Jur., Reformation of Instruments, § 41; Brandwein v. Provident Mut. Life Ins. Co., 3 N.Y.2d 491, 496.)
Order unanimously reversed, with costs, and motion granted.
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