East River Bank v. Cutting

1 Bosw. 636

Opinion

Bosworth, J.

There has been no transfer - of interest-pending the action. By taking judgment against Cutting,-the action was severed, and as to Cutting, determined by the judgment. There was,-then, no action pending as against Caldwell, Itcould only be commenced by the service of the summons upon. him. Before it was so commenced the cause of action was transferred to the Receiver. The motion cannot be granted under § .121 of the Code. If the action could he brought in the name of the present plaintiff, by serving the summons on Caldwell, when service of it was made on him, a recovery can be had -in the name of the present plaintiff. If it could not, then, granting the motion, would be substituting, after issue joined, a person, as plaintiff, who had a right to sue, for one who had no right to sue. Motion denied; with $7 costs to abide event.