Hess v. Stowell

259 A.D. 976, 19 N.Y.S.2d 962, 1940 N.Y. App. Div. LEXIS 7499

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1940
• Status: Published

Opinion

Order affirmed, without costs of this appeal to either party. Memorandum: The plaintiff Mrs. Hess, as executrix, sues herself individually as one of the defendants in this action. An answer on behalf of the defendant Hess has been served by a firm of attorneys employed by the insurance company in which Mrs. Hess is insured against liability. The plaintiff executrix seeks to strike out this answer on the ground that the defendant Hess has not consented to the form and contents of such answer. In support of this motion an affidavit is made by Mrs. Hess in which she states that she is the plaintiff but does not state that she is a defendant in the action and does not make her motion in her capacity as defendant. The motion was denied and the plaintiff appeals therefrom. The defendant Hess has not joined in the appeal and is not before this court claiming that the answer filed is not her answer. At no time has the defendant Hess alleged that the attorneys who filed the answer are not her attorneys or that they have not the right to appear for her. The answer was verified by one of that firm of attorneys. The plaintiff upon the record in this case is without authority to make this motion. The defendant Hess is a party to this action, is an adult and is competent to protect her own rights. All concur. (The order denies plaintiff’s motion to require the attorneys for the National Casualty Company to withdraw an answer interposed by them in behalf of defendant Grace G. Hess.) Present — Crosby, P. J., Cunningham, Dowling, Harris and McCurn, JJ.