decided: November 26, 1969.
HAROLD MOORSTEIN & CO., INC. ET AL., RESPONDENTS,
EXCELSIOR INSURANCE CO. OF SYRACUSE ET AL., APPELLANTS
Moorstein & Co. v. Excelsior Ins. Co.,
Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.
Memorandum. The order of the Appellate Division should be affirmed. The affidavits submitted on the motion for summary judgment were unanimous as to the intent of the parties to the assignment. Hence, there was no issue of fact to be determined and summary judgment was proper. However, we note that the dictum in the opinion below, interpreting Stathos v. Murphy (26 A.D.2d 500, affd. 19 N.Y.2d 883) to give the assignee of proceeds of a claim priority over attaching lienors, is clearly incorrect. As was pointed out in the opinion in Stathos (at pp. 503-504), the assignment of after-acquired proceeds of a claim is generally considered an assignment only of a future right and, therefore, the assignment does not give the assignee priority over lienors who have attached before the proceeds have come into existence.
Order affirmed, with costs, in a memorandum.
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