Opinion
June, 1928.
Appeal from Supreme Court, New York County.
Present — Dowling, P.J., Merrell, Finch, McAvoy and O'Malley, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Under the allegations of the paragraph stricken out from the answer by the order appealed from, the defendant would be entitled to show at the trial a due legal assignment by the plaintiff of the claim upon which the action is based, as distinguished from the equitable right of subrogation. In this event there may be no right in the plaintiff to maintain the action. The defense that the plaintiff is not the real party in interest must be pleaded in order to be available to the defendant upon the trial. ( Smith v. Hall, 67 N.Y. 48, 50.) The order appealed from must be reversed, with ten dollars costs and disbursements, and motion to strike out denied, with ten dollars costs.