Hochschartner v. Schneider

22 A.D.2d 867, 254 N.Y.S.2d 427, 1964 N.Y. App. Div. LEXIS 2628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1964
• Status: Published

Opinion

Order, entered on April 30, 1964, denying defendants’ motion to dismiss complaint on ground that plaintiffs are not the real parties in interest and granting plaintiffs’ cross motion to add Joseph F. Ruggieri, Receiver, as plaintiff and to serve the proposed amended complaint, unanimously modified, on the law, with $30 costs to defendants-appellants against respondents, to allow plaintiffs to join the receiver as a party and to serve an amended complaint within 20 days after service of a copy of the order entered hereon, with notice of entry, in which complaint the causes of action in favor of plaintiffs and in favor of the receiver shall be separately stated and numbered and to which defendants may plead any defenses that they deem advisable, including the Statute of Limitations. We agree with Special Term that CPLR 1003 allows the addition of the receiver as a party plaintiff subject to the exercise of a sound discretion and, furthermore, that discretion was properly exercised. However, the proposed amended complaint submitted with the cross motion fails to differentiate between the alleged wrong and damages accruing to the partnership and which would pass to the receiver and that done to and for which redress would inhere in the individuals. Unless the complaint distinguishes between the two, defendants will be unable to answer properly. .The order makes no provision for the answer and, while no limitation on defenses would probably be inferred, provision is now made, without, however, implying any adjudication as to the validity of such defenses. Concur — Botein, P. J., Rabin, McNally, Eager and Steuer, JJ. •