Lieberman v. Cappellino

277 A.D.2d 895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1950
• Status: Published

Opinion

In an action upon a promissory note, payable on demand, by a holder in due course, order granting motion of the respondent, who -was the maker of the note, to vacate a trial preference which had been granted the plaintiff, pursuant to rule 7 of the Kings County Supreme Court Trial Term Rules, reversed, with $10. costs and disbursements, and the motion denied, with $10 costs. Although the plaintiff is not a resident of Kings County, the rule accords to a nonresident of the county the right of preference if he is the “ assignee ” of the cause of action, and if the assignor was, at the time the cause of action arose, a resident of the county. The payee, by whom the note was indorsed and transferred to the plaintiff, was and is such resident of the county and, therefore, the plaintiff, as the present owner of the cause of action, is entitled to the preference. The fact that his substantive rights are greater than would be those of a mere assignee, does not lessen the right to the preference. Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.