We have repeatedly held that when it is intended to examine the assignor of a thing in action as a witness, it is not necessary to give notice of that intention where the evidence is not to be used “ against an assignee or executor or administrator.” And although we regret that we differ in this respect from some of the judges of the Supreme Court, we are not satisfied that our construction of the 299th section of the Code is erroneous. The reasons given for their opinions appear to us entitled to grave consideration by the legislature, and are, perhaps, quite sufficient to show that the law ought to be in accordance with their decision. They do not, however, satisfy us that the law, as enacted, is other than we have heretofore considered it. We trust that the court of last resort will soon relieve us and the profession from the embarrassment which this conflict of opinion necessarily occasions.
All the matters assigned in the notice of this appeal as ground for reversal, which relate to the sufficiency of the notice of the intended examination of the assignor, or of the proof of service *249thereof, must be laid out of view. In our opinion the evidence on that subject was wholly unnecessary and irrelevant.
Most of the other reasons stated as grounds of appeal relate to the facts in issue and the sufficiency of the proof. The action is brought by the plaintiff, as assignee of Charles B. Freeman, to recover damages for the loss of baggage alleged to have been delivered to the defendants, as common carriers, to be transported on the passage of the assignor from Albany to New York.
It is stated in the notice of appeal that there was no sufficient proof of the assignment of the claim and of the delivery of the assignment to the plaintiff.
The assignment was produced in court by the plaintiff through his counsel. Its execution was duly proved by the subscribing witness, and it purports to transfer the carpet bag and its contents, described as lost or stolen, etc., and all rights of the assignor to collect and receive the same or payment therefor. We perceive in this no deficiency of proof; the assignment is upon valuable consideration; its execution was sworn to, and its production in court by the plaintiff through his counsel was prima fade evidence of its delivery.
We are not informed by the appellant in what particular or on what ground he claims that there was any insufficiency or imperfection in this proof, nor do we discover any.
But another ground of appeal is that the claim is not assignable. There is no foundation for this objection.
It is quite true that before the enactment of our Code a claim for damages against a common carrier for the loss of goods, whether the suit was prosecuted in the form of contract or of tort, could not have been prosecuted in the name of the assignee, and in that sense is said not to be assignable, i. e. not so as to enable the assignee to sue in his own name, although after such an assignment of the chattel itself, the assignee, upon a fresh demand, was held entitled to maintain trover in his own name. (Hall v. Robinson, 2 Comst. 293.)
But it is well settled that claims for damages to property which may be the subject of a contract, and where the right *250of recovery would pass, on the death of the party, to his executors and administrators, as assets, may be assigned, and the rights of the assignee will be protected, though it is otherwise as to torts purely personal and the claim for which dies with the person. (See The People v. Tioga Com. Pleas, 19 Wend. 73; Hoyt v. Thompson, 1 Selden, 320, 347.)
A further alleged ground of appeal is that the assignor should have been made a party defendant. This objection was sought to be raised by plea in abatement, and was' matter of abatement only.
A demurrer would lie in a justice’s court to such a plea. (See Code, § 64, subd. 6.) But when the plea was adjudged insufficient, the defendant had his option to answer to the merits or to rely upon an appeal from the judgment of the justice upon the matter in abatement, and he is bound by his election. By pleading to the merits he waived the matter of abatement, and so we have repeatedly held.
It is not, therefore, necessary for us to decide whether, since the alteration of the law in such wise, that the suit may now be brought in the name of an assignee, the defendant has a right to require the assignor to be made a party, so that he shall be concluded by the judgment and the defendant be protected against another suit in the name of the assignor, in which the execution of any assignment might possibly be denied by the latter. There may, no doubt, be cases in which the courts, who have power to make a direction to that effect, may order an alleged assignor to be brought in, so that the defendant may be fully protected, but ordinarily it will not be necessary. It was never suggested that the endorsee of a note could require the payee to be made a party to a suit against the makers, through an apprehension that such payee might afterwards bring suit on the note and prove that the alleged endorsement was a forgery. Nor even on a foreclosure of a mortgage in equity, when the bill was filed by the assignee of the mortgage, was it deemed necessary to make the alleged assignor of the mortgage a party, through any such apprehension of a possible fraud. When a defendant seeks, upon a sufficient ground of *251apprehension, for the equitable interposition of the court, and shows fraud, mistake, or other reason therefor, it may be granted; but in a case like the present it seems sufficient that he had a full opportunity to contest the plaintiff’s right to sue, and examine the assignor himself in support of his defence.
The other grounds of appeal relate to the question whether the defendants ever received the baggage into their custody, and whether the plaintiff could recover notwithstanding the notice posted in the defendants’ steamboat that they would not be responsible unless the passenger procured a check for his baggage.
As to the first, it should suffice to say that there was evidence in support of the finding of the court below. There was some conflict upon the point whether the person who took the baggage at the railroad to carry to the boat was or was not the defendants’ agent. If the case rested upon that conflict alone, we must hold the finding below conclusive. But there was evidence that it was actually delivered on board the defendants’ boat and was in charge of the person engaged there in handling the baggage. This also, we think, warranted a finding that the defendants received the baggage for carriage as alleged; and one witness testified that the boats were the defendants’ boats. This was enough to establish a joint liability.
As to the claim that the defendants are not liable because the passenger received no check—while we do not intend to decide that by putting up such notices the defendants can protect themselves against liability where the baggage is delivered on board their steamboat to their agents in charge of baggage there—We do say that when the passenger delivers his baggage to the agent and demands a check and it is not furnished to him, that is enough. The defendants cannot protect themselves by saying they will not be liable unless a check is received by the passenger without providing the means of procuring checks, and if the person whose duty it was to give checks is not at his post when baggage is received, the passenger is not to be prejudiced thereby.
The judgment must be affirmed, with costs.
Judgment affirmed, with costs.