Burton v. Burton

57 A.D. 113, 67 N.Y.S. 1067

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1901
• Status: Published

Opinion

Jenks, J.:

' This appeal presents a single question. The plaintiff, in 1892, became the indorsee of the payee of a promissory note made by the defendant. This action was brought in 1896 and came to trial in 1899. A* the trial the defendant offered in evidence “ this assignment for the benefit of creditors made by Isabella M. Burton to Theodore M. Henry, filed January 9th, 189Y. Objected to; sustained ; exception.” It is contended that this was error. I think that the action might be continued in the name of the original party. (Code Civ. Proc. § 756 ; Lawson v. Town of Woodstock, 37 Hun, 352 ; Cuff v. Dorland, 7 Abb. N. C. 194.) There is a further consideration mentioned in the first authority cited which makes such continuance proper aside from the privilege afforded by the statute. Under such an assignment the assignor is still interested. If the assignee collect anything, it pays the assignor’s debts, and any surplus would go to the assignor. In McGean v. Metropolitan Elevated R. Co. (133 N. Y. 9), where the objection raised was that the plaintiff had transferred his realty pending the trial, the court held that section 756 was sufficient authority, unless the court directed that the grantee be made a party, and that such question could not be raised for the first time upon the trial, but must be presented either by motion or by supplemental pleading,

•The judgment and order appealed from must be affirmed, with costs.

All concurred, except Sewell, J., taking no part.

Judgment and order affirmed, with costs.