By the Court,
I will examine these objections in the order in which they are presented by the defendant. And first, as to the necessity of a written assignment of the demand in question. Ho authority is cited to sustain this objection. The demand was doubtless a “chose in action,” within the meaning of the statute-of frauds. (2 R. S. 136, § 3.) Here there was a delivery and acceptance of t&e note, which was-some evidence of the demand, and this *342would make the sale and transfer good, even as between the parties to it. (Id. § 3, sub. 2.) It does not, however, appear that the consideration amounted to fifty dollars, nor but that the plaintiff at that time paid some portion of it. (Id. § 3, sub. 3.) Perhaps if the judge had allowed the question to be answered, as to “ what was the consideration of the assignment,” it would have appeared that it did not amount to fifty dollars. The question having been objected to by the defendant, it will not be assumed that the answer would have aided him in disproving the validity of the transfer.
The two next objections may be considered together, and they present the question, whether since the code authorizing the assignee and owner of a demand to prosecute for it in his own name, the present plaintiff can surrender the note given for a portion of the account and sue the defendant for the original demand. Formerly there would have been a ~teel|nical difficulty in his way, as the action must have been -Woiight in the name of the assignor. As the law was before th^heuey/qf the note had been negotiable, the plaintiff might sued upon that, but not upon the original account, ''although ./formally assigned to him. But since the code I not, see any objection to a suit in the name of the assignee, for the original demand, provided it is assigned to him contemporaneously with the note. When, however, there is a transfer of the note without a transfer of the account for which it is given, the account, it seems, is extinguished. And it seems the transfer of the note merely does not transfer an interest in the account, so as to entitle the assignee to sue upon it. (Battle v. Coit, 19 Barb. 68.)
The evidence given upon the trial, and which was uncontradicted, would I think have authorized the jury to find as a matter of fact, that the assignment was of both the note and the original account. It was assumed upon the motion for a nonsuit that the note was not negotiable. Hence by the law as it existed before the code, the suit upon the note as well as upon the account must have been in the name of *343the assignor. In such a suit I see no reason why the plaintiff could not maintain an action upon the original account by surrendering the note upon the trial. And when the original account is assigned with the note, there is no reason now why the suit may not be maintained, with the same effect, by the assignee.
It is also competent for the original parties to separate the account into two items of indebtedness, and the giving of the note for a portion of it, under the circumstances detailed in the evidence, did not interfere with the collection of the balance. If the assignor had not transferred the demand, it is apparent that after the note fell due he might have maintained a suit upon the original account, by producing the note on the trial, to be canceled. As the evidence in this case would have authorized the jury to find that the note and account never belonged to different parties, but that the account for which the note was given was assigned to the plaintiff with the note, I am of opinion that it was competent for the assignee to sue the account, and that he might recover in this action by producing and cancelling' the note upon the trial.
After all, the objection is one of form, for if the plaintiff could not recover so much of the acconnt as the note covered, he could have sued upon the note in one count, and for the balance of the indebtedness in another count. Upon the hypothesis that the assignment was of the whole account as well as of the note, the action was well brought, and the objections of the defendant should have been overruled.
There is nothing in the claim made by the defendant that the note should have been delivered up before the commencement of the action. That is only required when the suit proceeds upon the basis of a rescission of the contract. The giving of the note was not a payment of the account; nor did its transfer to the plaintiff operate as payment, being negotiated together, to the same party by the same act. It has been too often decided in this state to require the cita*344tian. of authorities, that the simple note or promise of the debtor is not a payment of a precedent debt. While the note remains in the hands of the original creditor it merely suspends the remedy on the original demand until its maturity ; and then the creditor has his election to- sue upon the note or upon the original indebtedness. And when he sues iipon the- original demand it is sufficient for him to produce and surrender the note upon the trial.
[Onondaga General Term,
October 4, 1864.
I am opinion, therefore, that a new trial should be granted, costs to abide the event.
Ordered accordingly.
Morgan, Bacon and Foster, Justices.]