241 A.D. 738 | N.Y. App. Div. | 1934
Orders denying motions for summary judgment affirmed, with ten dollars costs and disbursements. The plaintiff Cuff was not a party to the Federal court action. (Clarke v. Hot Springs Electric Light & Power Co., 55 F. [2d] 612.) His filing of the bonds in his hands as trustee was with the reservation of the rights of those whom he represented to enforce collection of whatever may be due from defendant, and this was inclusive of such judgment as might be obtained in his present action for damages for breach of contract charged against the defendant. Nor was there any election of remedies by the plaintiff, trustee. In the case of the intervenors, their relation to the present litigation is similar to that of the plaintiff Cuff, and there can be no determination without a trial of the defense of the Statute of Limitations as against such intervenors. Young, Kapper, Hagarty and Carswell, JJ., concur; Davis, J., concurs in result.
