Boyan v. General Time Instruments Corp.

267 A.D. 908, 47 N.Y.S.2d 29, 1944 N.Y. App. Div. LEXIS 5456

Opinion

Appeal by defendant from an order denying its motion under rules 112 and 113 of the Rules of Civil Practice for a judgment dismissing the cause of action of the respondent. Order reversed on the law and the facts, without costs, and the motion granted, without costs. This respondent has no present interest in the cause of action. It was wholly assigned by operation of law to the insurance carrier, who is also a plaintiff in the consolidated action. (Wilton v. Radish, 266 App. Div. 974; Calagna v. Sheppard-Pollak, Ino., 264 App. Div. 589; Garter v. Brooklyn Ladder Go., Inc., 265 App. Div. 39.) The order of consolidation did not bar the defendant from moving. The questions here presented were not necessarily passed on in the motion for consolidation. Close, P. J., Carswell, Adel, Lewis and Aid-rich, JJ., concur.