Alexander v. City of Gloversville

Appellate Division of the Supreme Court of New York

Alexander v. City of Gloversville

110 A.D. 791, 97 N.Y.S. 198, 1906 N.Y. App. Div. LEXIS 79

Appellate Division of the Supreme Court of the State of New York·Decided January 8, 1906·Published·Cited by 1 cases

Opinion

Chase, J. :

.FronTthe complaint we conclude that the plaintiffs claim that the -defendants took the pension check after the same had been indorsed by the plaintiff Miller and then .retained, from the proceeds thereof $15.2.41, and that nearly four months thereafter the defendants’" on [793] demand refused to pay said balance to the plaintiff Hiller. The alleged claim and cause of action arising from such' refusal to return' part of the proceeds' of said check was one that could be assigned. It does mot come within the -terms of the prohibition contained in section 4745 of the Be vised Statutes of the United States (as amd. by 22 U. S, Stat. at Large, 432, chap. 58, § 2). (Farmer & Sons, v. Turner, 64 Iowa, ,690.) In a common-law action one who has no right or title to sue cannot join as coplaintiff with others who have such right. (15 Ency. PI. & Pr. 527; Porter v. Mount, 45 Barb. 422.)

The plaintiff Hiller having transferred the entire cause of action to the plaintiff Soules the, demurrer on the ground of a misjoinder 'of parties plaintiff was proper and should liav-e been sustained. (Havana City R. Co. v. Ceballos, 49 App. Div. 263.)

The interlocutory judgment should be reversed, with costs, and the demurrer should be sustained, with costs.

All concurred ; Kellogg, J., not sitting,.

Interlocutory ""judgment reversed, with, costs, and the demurrer sustained, with costs.

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Chase, J. :

.FronTthe complaint we conclude that the plaintiffs claim that the -defendants took the pension check after the same had been indorsed by the plaintiff Miller and then .retained, from the proceeds thereof $15.2.41, and that nearly four months thereafter the defendants’" on [793] demand refused to pay said balance to the plaintiff Hiller. The alleged claim and cause of action arising from such' refusal to return' part of the proceeds' of said check was one that could be assigned. It does mot come within the -terms of the prohibition contained in section 4745 of the Be vised Statutes of the United States (as amd. by 22 U. S, Stat. at Large, 432, chap. 58, § 2). (Farmer & Sons, v. Turner, 64 Iowa, ,690.) In a common-law action one who has no right or title to sue cannot join as coplaintiff with others who have such right. (15 Ency. PI. & Pr. 527; Porter v. Mount, 45 Barb. 422.)

The plaintiff Hiller having transferred the entire cause of action to the plaintiff Soules the, demurrer on the ground of a misjoinder 'of parties plaintiff was proper and should liav-e been sustained. (Havana City R. Co. v. Ceballos, 49 App. Div. 263.)

The interlocutory judgment should be reversed, with costs, and the demurrer should be sustained, with costs.

All concurred ; Kellogg, J., not sitting,.

Interlocutory ""judgment reversed, with, costs, and the demurrer sustained, with costs.

Alexander v. City of Gloversville, 110 A.D. 791, 97 N.Y.S. 198, 1906 N.Y. App. Div. LEXIS 79 (N.Y. Ct. App. 1906).

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