Opinion
September 22, 1961
Carroll Trapani for plaintiff.
Skadden, Arps, Slate, Meagher Flom ( Robert J. Ensher and Stephen S. Ziegler of counsel), for defendants.
Motion to reargue is granted. Upon the reargument it is urged by defendants that the assignment of a partial interest in a claim for money only, though it works an equitable assignment, is now cognizable at law in this State (citing Blake v. Weiden, 291 N.Y. 134; Dunlop v. James, 174 N.Y. 411); so that the holder of such an equitable assignment must be joined as a necessary party in an action by the claimant (citing Moore v. Taylor, 175 App. Div. 37; Sisson v. Hassett, 155 Misc. 667; Townsend v. Halbert, 194 Misc. 1033, etc.).
The merit of such argument, however, is limited to those causes of actions which by their nature are transferable. ( Coughlin v. New York Cent. H.R.R.R. Co., 71 N.Y. 443, 449, 450.)
In the face of the common-law prohibition, explicitly reiterated in section 41 Pers. Prop. of the Personal Property Law, making actions for personal injuries not transferable, the joinder of the equitable assignee of a part of an injured person's right of recovery, in an action by the latter, renders the complaint defective in form and any judgment recovered upon such a divided cause of action would be erroneous. ( General Acc., Fire Life Assur. Corp. v. Zerbe Constr. Co., 269 N.Y. 227, 231-232.) Upon reargument, after due deliberation, the original decision is adhered to and the motion to compel the joinder of Herbert M. Simonsom, the equitable assignee of a part of the plaintiff's cause of action for personal injuries, as a necessary party, is denied.