(dissenting):
In Risley v. Phenix Bank of City of New York (83 N. Y. 329) Judge Andrews says: “ The claim that there can be no valid assignment of a part of an entire debt or obligation is opposed to the well settled rule in this State [citing authorities]. * * * The tendency of modern decisions is in the direction of more fully protecting the equitable rights of assignees of choses in action, and the objection that to allow an assignment of part of an entire claim might subject the creditor to several actions to enforce a single obligation has much less force under a system which requires all parties in interest to be joined as parties to the action.” " . ..
This rule was approved and followed in Chambers v. Lancaster (160 N. Y. 348) and has never since been questioned in this State.
In King v. King (73 App. Div. 547) it was held that an assignee of a one-fifth interest in a promissory note could not maintain a separate action at law to enforce his fractional interest. That the rule is different in equity has been held by this court in Dickinson v. Tysen (125 App. Div. 735).
It is undoubtedly true that plaintiff cannot separate an entire claim and sue for a part only without barring his right to sue for the balance. If, however, he assigns part only of his claim it cannot be possible that the assignee may sue the debtor for the part assigned and the assignor be barred *650from prosecuting the balance. He is not thus at the mercy of bis partial assignee. If the assignee of a part, therefore, sue for his claim the defendant may object that such suit cannot be brought unless he make a party the owner of the balance of the claim that defendant may not be vexed with more than one action. If, however, he joins issue without objection or proceeds with the trial without objection after the fact appears from the evidence that the assignment is only partial he waives his right to have the full claim prosecuted in one action. So in Dickinson v. Tysen (supra) the opinion referring to the case of Chase v. Deering (104 App. Div. 192), in which was sought to be enforced an assignment of a part only of a claim, said: “ There the debtor objected to the presence of the other parties to the claim other than the plaintiff. Having raised the objection, and asked that all references in the complaint to the other parties be stricken out, he undoubtedly waived his right to have the whole claim determined by a single action and a judgment would not have been a bar to an action by the owners of the remainder of the claim.”
A more serious question arises as to whether all of the claim or a part only thereof was assigned. It will be remembered that the contract with Carvill was terminated by the defendant upon February fifth. At that time, assuming the contract to have been unlawfully terminated, Carvill had his right of action for the full contract price up to the first of the succeeding January, so that all the damage was in fact then due. (Howard v. Daly, 61 N. Y. 362.) The assignment assumes to transfer to Jones the damages “ for the breach of its [the corporation’s] agreement of hiring with me, this assignment covering all damages which have accrued to me, or may accrue up to March 6, 1916, reserving to myself all damages which may accrue after said date.” By strict legal construction all of the damage for the breach of the contract might well be deemed to have been thus assigned, but courts endeavor to ascertain the intent of the parties, and if the intent of the parties is apparent upon the face of the instrument, then the court will give effect to the instrument as expressing that intent. In Howard v. Daly (supra) it is held that the damages in such an action even though the action *651be commenced immediately after the breach and before the expiration of the term of the agreed employment “are prima facie the amount of the wages for the full term.” In the assignment to Jones, Carvill reserved to himself all damages which might accrue after March 6, 1916. It is impossible to give effect to that reservation except by holding that the intention of the instrument was to pass to Jones the right to recover the damages measured by the wages due prior to March 6, 1916, and to reserve to himself the right to recover damages measured by the wages thereafter due. Any other construction of this assignment would seem to me so technical and so at variance with the clear intention of the parties that it would discredit the administration of the law. Jones made no claim for the wages for the year. He interpreted the contract as entitling him only to recover the wages up to March sixth and in his action against the defendant has recovered upon that interpretation. This then is the practical construction given to the contract by both parties thereto, and should be deemed controlling upon the court. Regarding this assignment, then, as an assignment of part of the claim only, the neglect of the defendant to object that Jones could not recover in a separate action . without making this plaintiff a party to that action, should, I think, be deemed a waiver of the defendant’s right to insist that it be subjected to one action only for the breach of the contract.
In the agreed statement of facts it appears that after the breach of this contract by the defendant the defendant offered the plaintiff employment at the rate of twenty dollars per day, which he refused. If such offer was of similar employment the plaintiff was bound to accept that offer in order that he might diminish his damage, which he was in duty bound to do, but the record does not show that the offer was of a similar employment, nor does it show for what length of time the employment at twenty dollars a day was offered. There are not sufficient facts, therefore, in the agreed statement of facts upon which this case was tried to show that the plaintiff violated any duty to the defendant in failing to diminish the damage which he should suffer by the defendant’s breach of the contract. The defendant makes no claim upon *652this submission that the right of the plaintiff to recover the full damage is in any way impaired by his failure to accept other employment of a similar nature offered to him.
I recommend, therefore, that the judgment be affirmed, with costs.
Determination of Appellate Term reversed and judgment of Municipal Court reinstated, with costs.