| N.Y. App. Div. | Nov 13, 1945
Appeal No. 1: Action in equity to recover shares of stock of the appellant corporation from an alleged pledgee and for an accounting in respect thereof. Order, insofar as it denies appellants’ motion under rule 107 of the Rules of Civil Practice to dismiss the complaint on the ground that the plaintiff has not legal capacity to sue, reversed on the law and the facts, with $10 costs and disbursments, and the motion granted, with $10 costs. The undisputed facts in the affidavit of the affiant Bergen establish that the cause of action vested in the trustee in bankruptcy in the absence of an affidavit from the plaintiff that the alleged asset had been scheduled as an asset or had been brought to the attention of the trustee and that the trustee had elected to reject it as an asset. (Stephan v. Merchants Collateral Corp., 256 N.Y. 418" date_filed="1931-06-02" court="NY" case_name="Stephan v. Merchants Collateral Corp.">256 N. Y. 418, 422.) The facts in the affidavit of the affiant Bergen not being controverted, the Special Term had no discretion under rule 108 of the Rules of Civil Practice to relegate appellants to an invoking of the facts in the answer' as a defense. Appeal No. 2: Order denying appellants’ motion to dismiss the complaint under rule 107 of the Rules of Civil Practice on the ground that the action is not being prosecuted in the name of the real party in interest, reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, with $10 costs, on the authority of the disposition of Appeal No. 1 herein. Close, P. J., Hagarty, Carswell, Johnston and Lewis, JJ., concur.