¶1By the terms of the contract a deed of conveyance of the premises referred to therein was to be delivered to the plaintiff on September 10,1910. On September seventh, three days prior thereto, plaintiff, for a valuable consideration, sold, assigned and transferred to his wife all of his rights under the contract and directed that the deed be made to her and at the .time fixed for the delivery of the deed the same was actually deliv*369ered to and accepted by her. She immediately went into and has ever since remained in possession, and is now the owner of the premises covered thereby. It is quite evident he intended to assign and transfer to his wife whatever rights he had growing out of or in any way connected with the making of the contract. There is nothing to indicate that he intended to reserve to himself a cause of action for fraud. This is apparent from the fact that he did not then know, nor did he learn until after the deed had been delivered, that there had been any misrepresentation as to the value of the premises. He is not, therefore, as it seems to me, in a position to maintain this action; since the damages for the fraud, if any there were, belonged to his assignee and not to himself. The assignment, in the form in which it was made, transferred to her the right to maintain such action. (Bentley v. Smith, 1 Abb. Ct. App. Dec. 126; Bennett v. Wolfolk, 80 Hun, 390; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 41.)
¶2Simar v. Canaday (53 N. Y. 298) is not, as I read the opinion, in point. In that case the plaintiffs were husband and wife, and jointly brought an action to recover damages for an alleged fraud of the defendant in inducing them to convey certain real property and to accept in part payment certain bonds and mortgages which it was claimed were worthless. The property conveyed was owned by the husband. The bonds and mortgages were, by the direction of the husband, assigned to the wife, who joined with her husband in the deed of conveyance. It was held that her inchoate right of dower in the lands of her husband was a subsisting and valuable interest, to protect and preserve which she had a right of action, and for that reason she was properly joined as plaintiff with her husband.
¶3For the foregoing reasons I think the judgment and order appealed from should be affirmed.
¶4Clarke, J., concurred.
¶5Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.