Juba v. General Builders Supply Corp.

6 A.D.2d 839, 175 N.Y.S.2d 961, 1958 N.Y. App. Div. LEXIS 5363

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1958
• Status: Published

Opinion

In an action to recover damages for personal injuries and for other relief, the appeal is from an order granting respondent’s motion for judgment on the pleadings and dismissing the complaint and from the judgment entered pursuant thereto dismissing the complaint and the reply to the affirmative defense in the answer. Respondent’s answer pleaded an affirmative defense that appellant was not the real party in interest, his cause of action against respondent having been assigned by operation of statute on September 2, 1950, pursuant to section 29 of the Workmen’s Compensation Law (as amd. by L. 1947, chs. 9, 144, and as it read prior to amdt. by L. 1951, ch. 527). Pursuant to an order, appellant served a reply which alleged that his employer, defendant Rossman, had transferred and reassigned to appellant all Rossman’s right, title and interest in the alleged statutory assignment. Appellant’s bill of particulars sets forth said written assignment which was dated January 27, 1953, the same date the reply was verified. The bill alleged that the written assignment was made orally and agreed upon prior to January 27, 1953. The accident happened on September 2, 1949 and there was no allegation in the bill that there had been an oral agreement to reassign prior to the commencement of the action or prior to September 2, 1952. Order and judgment unanimously affirmed, with $10 costs and disbursements (Juba v. General Bldrs. Supply Corp., 284 App. Div. 891; Olker v. Salamone, 283 App. Div. 948, motion for leave to appeal denied 283 App. Div. 1103; see, e.g., Stevenson v. News Syndicate Co., 302 N. Y. 81, 87). Present — Nolan, P. J., Wenzel, Murphy, Ughetta and Kleinfeld, JJ.