By the Court.
Ingraham, First J.The defendants proposed to show by Heyn that he made an agreement with the person whose baggage was lost in regard to such baggage. This was excluded, and the defendants excepted. The evidence showed that Heyn, at that time, was not in the defendant’s employ, and, therefore, had no authority to make any agreement on the subject.
Jeannette Miller was the owner of the trunk which was lost, and she assigned the property to the plaintiff, and was called as a witness to prove the contents. She stated that the trunk contained silver ware, and the court below allowed the plaintiff to recover therefor. The trunk was carried as baggage, without charge, from New York to Albany. Articles not necessary for travelling, and money beyond what was necessary for a traveller’s expenses, have been held not to be recoverable from the carrier.
I see no difference between silver ware and silver money. *62Such articles form no part of a traveller’s baggage, and there is no more propriety in excluding the one than the other. The mere fact of coining and stamping the silver cannot alter the rule applicable to this kind of property, in connection with the liability of the carrier.
Nor am I satisfied with the ruling of the court below, in regard to the competency of Jeannette Miller to be a witness after her disclosures as to the assignment. A party having a claim against another may assign it for a consideration, to be paid for it, or may give it away. Either transfer would be sufficient to enable the assignee to bring an action therefor in his own name. But it must be a fair and Iona, fide transaction, in which the interest in the claim passes to the assignee for his benefit, and not for the use of the assignor. And where it appears that the assignment was merely colorable— made only for the purpose of enabling the assignor to be a witness to make out the case against the defendants—and with the clear intent that the money, if recovered, should be paid to the witness, it seems to me to come fully within the description of a person for whose immediate benefit the action is prosecuted.
The effect of this provision of the Code has not been in many cases to promote the administration of justice, and if it is to be extended to a case such as is above stated, the evil will be much increased.
This witness states that she received $20 from the assignee for the assignment; that she returned the money to him as a loan; that she took his word for the return of it; that she assigned the claim because she had lost all hopes of getting it; that she was advised she could be a witness if she assigned it, and, in consequence, she made the assignment; that she thought it best to risk that sum; that there was an understanding that if a recovery was had, she should be benefited ; that she might recover some of the property; that the plaintiff said there was a possibility of recovering something.
No one can read this testimony and not be satisfied that the object of the assignment was to make the assignor a wit*63ness to recover money which was to be applied to her use and benefit.
The other grounds of appeal, stated in the notice, are unavailing.
The judgment should be reversed.