Ormond v. Breunich

246 A.D. 559

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1935
• Status: Published

Opinion

Order of the City Court of Mount Vernon granting summary judgment to plaintiff and judgment entered thereon reversed on the law and the facts, without costs, and motion denied, without costs. We are of opinion that it is incumbent upon plaintiff as an assignee to prove that the defendant’s right in and to a possible surplus, as contemplated under the North Carolina statutes, has not been prejudiced by reason of the assignment. The purported appeal from the order entered April 10, 1935, denying defendant’s motion to dismiss the complaint for insufficiency and for lack of capacity to sue is dismissed, the appeal not being timely. Young, Hagarty, Carswell, Davis and Johnston, JJ., concur.