DENIO, Ch. J.

There can be no doubt but that the order which the plaintiffs obtained from Scofield, accompanied with the evidence that it was given for value, was a valid equitable assignment of the demand which Scofield had against the city. The delivery of the order to the comptroller, had there been nothing to qualify it, was, under the circumstances, sufficient notice of the assignment to charge the city. These points were decided in Field v. The Mayor, c., of New York (2 Seld., 179), and were reaffirmed in Hall v. The City of Buffalo, at the September Term of the last year.

The terms of the order were sufficiently broad to embrace any indebtedness of the city to Scofield, which would fall within the descriptions of "plank road and sidewalk accounts," and there appears to be no doubt but that all the work and material in respect to which the debt incurred in 1854, as well as that in 1856, arose, was of that character. Although the order was not a contract to which the defendant was a party, it was evidence in writing of the plaintiffs' title to payment out of the moneys referred to in it, and was hence within the protection which the law of evidence affords to written instruments, and which precludes their being varied or contradicted by parol.

It was quite competent, however, for the plaintiff to waive any of the rights which they acquired by the assignment. If, at the time of delivering the order to the comptroller or afterwards, they consented that Scofield might, notwithstanding, receive any part of the money which the city owed him, and so informed the proper officer of the city, and the latter, before any countermand or retraction of the license thus given, paid Scofield accordingly, such payments being within the scope of the permission, would be valid payments, and the plaintiffs could, upon the plainest principles of justice, be precluded from questioning them, and from claiming that the money should be again paid to them. The evidence on the part of the defendant, and the finding of the referee bring the payment of the $110 made to Scofield within those principles, and were a perfect answer to so much of the plaintiffs' claim upon the fund.

I am furthermore of opinion that they might limit and restrain the rights which he acquired by the order, by an arrangement with the city through its proper officers. The city was not a party to the order, which was a transaction wholly between the plaintiffs and Scofield. If notice had not been brought home to it, of its contents, it would have been at liberty to pay to Scofield the whole amount which they owed him. But after notice, such payment would be a violation of the equitable rights which the plaintiffs had acquired by means of the order and the notice. Notwithstanding the general terms of the order, it was competent for Scofield and the plaintiffs to have agreed that the former should retain the control of that part of his entire claim against the city, which arose in the year 1854. But if the plaintiffs, in consequence of such an agreement, or without having made one, informed the accounting officers of the city that such were the terms of the arrangement, and they or their successors had acted upon it, the plaintiffs would have been bound. This is what the defendant offered to prove by the evidence, which was excepted against by the plaintiffs' counsel; and the evidence tended to prove it. Mr. Willisten swore that Mr. Parker, one of the plaintiffs who acted in their behalf in the business, claimed for work in 1856, and nothing more, and upon that and some other evidence having a similar tendency, the referee has found that it was understood between the plaintiffs and the comptroller of the defendant, that the order was drawn upon the indebtedness of 1856.

The testimony was not very precise or direct, but it had a legal tendency to show that the notice which the defendant's officers had of the order, was qualified by a declaration in substance that it was not intended to embrace, and was not claimed to embrace the work of 1854. In consequence of this, as we are to presume, the defendant recognized the subsequent assignment by Scofield to another party, of what was due to him for that work. It may be considered to have been paid by the plaintiffs' permission. The defendants have paid all that they owed for the entire work and materials furnished by Scofield according to his direction and appointment, as interpreted and made known to them by the plaintiffs. It is not for us to judge of the relative weight of the evidence produced by the defendant and by the plaintiffs. That of the defendant was competent, and tended in some degree to establish the position on which it relied, and the referee, to whom that question was by law committed, has found it to be satisfactory, notwithstanding the contradictory evidence. We cannot interfere with that determination.

It was no answer to this view that the plaintiffs and Scofield agreed at the time the order was signed, that if the indebtedness of 1856 should not prove sufficient, the amount should be paid out of that of 1854. The order, as I have assumed, embraced all the indebtedness of both years, and the evidence would not have improved the plaintiffs' case. If this were otherwise, the proof would have been incompetent upon plain rules of evidence. There was no inconsistency between the ruling which excluded this evidence, and that by which the effect of the order was limited by the qualification which the plaintiffs voluntarily annexed to it.

I am in favor of affirming the judgment of the Supreme Court.

All the judges concurring,

Judgment affirmed.