Moppar v. Wiltchik

107 N.Y.S. 594 | N.Y. App. Term. | 1907

Per Curiam.

This action was brought to recover damages to merchandise injured by the leakage of water from pipes which were being placed in premises leased by the plaintiff by a contractor employed by the defendants. We should not be inclined to disturb this judgment were it not that it appeared upon the trial that the plaintiff was not the sole owner of the injured property. The proof shows that the plaintiff’s son, one-Louis Moppar, was a partner with plaintiff and that the copartnership owned the damaged goods.

The pleadings were oral, and consequently the defect of parties could not be taken advantage of by demurrer. As soon as this fact was made to appear, upon the trial, the defendants’ counsel moved to amend the answer setting up a defect of parties plaintiff. This motion was denied. It should have been granted. It affected a substantial right of the defendants and was in furtherance of justice.- The rule is well settled that to maintain an action it must appear that the plaintiff is the only person possessed of any ownership or interest in the demand; so that, on a recovery and subsequent payment, all rights of action in respect thereto will be barred as against the defendants.

Present: Gildebsleeve, Guy and Bbuce, JJ.

Judgment reversed and new trial ordered, with costs to appellants to abide the event.