Snodgrass v. Krenkle

49 How. Pr. 122 | N.Y. Sup. Ct. | 1875

Donohue, J.

The complaint alleges that a suit was pending in which the assignor of the plaintiff was plaintiff and certain other parties defendants; that the defendants in that suit, having moved for an adjournment, it was granted on the giving of the undertaking in suit; that that undertaking was to pay the judgment in execution, was returned unsatisfied, and the complaint alleges that the execution has been so returned. The complaint further alleges that the plaintiff in the suit was really, by assignment, the plaintiff here. The complaint alleges that the debt belongs to the plaintiff, and the amount is due to him. It is to be presumed that the assignment to him was in writing. To this the defendant demurs, on the ground that as the undertaking was to pay the plaintiff in the original suit, without adding his assigns, no suit will lie in the name of the present plaintiff. This, in practice, it seems to me, the Code intended to abolish and leave the action to be brought in the name of the real plaintiff. If the defendant is right and the original plaintiff had died before judgment, no action would lie in the name of his executors. It seems to me the complaint substantially complies with the Code, and that the grounds of demurrer stated are insufficient. I will, in the settlement of the order, hear the defendant as to the right to amend, if he has merits.