Merchants' Exchange National Bank v. Waitzfelder

21 N.Y. Sup. Ct. 47

• Court: New York Supreme Court
• Decided: April 15, 1878
• Status: Published

Opinion

Davis, P. J.:

This is a proceeding under section 375 of the Code of Procedure to bring in and have judgment against a joint debtor, made a party to the original action but not served with process. Pending the proceeding the respondents sold and assigned the original judgment to one Isaac Mack. Upon proving which fact, the appellant claimed that the proceedings in the court below should be dismissed and judgment entered in his favor.

The fact of such an assignment constituted no defence. It did not destroy the judgment or the claim on which it was founded as against this defendant. It was simply a transfer of ownership. The assignee might properly have been brought in by motion, as plaintiff or he could continue the action in the name of the original plaintiff. The latter course was pursued but no prejudice results either to the assignor of the judgment or to the defendant in any form by that fact.

We see no error in the proceedings and nothing upon which this appeal can be sustained.

The judgment should be affirmed with costs.

Brady and Ingalls, J.J., concurred.

Judgment affirmed with costs.