Reed v. Hopkins

Appellate Division of the Supreme Court of New York

Reed v. Hopkins

10 A.D.2d 897, 199 N.Y.S.2d 680, 1960 N.Y. App. Div. LEXIS 10767

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 7, 1960

StatusPublished

This text of 10 A.D.2d 897 (Reed v. Hopkins) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reed v. Hopkins, 10 A.D.2d 897, 199 N.Y.S.2d 680, 1960 N.Y. App. Div. LEXIS 10767 (N.Y. Ct. App. 1960).

Pincite

Opinion

Order unanimously modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: An objection uncler section 210 of the Civil Practice Act that a plaintiff is not the real party in interest must he taken by the defendant either in his answer or by a motion addressed to the pleading. (2 Carmody-Waite, New York Practice, p. 551; Massi v. Alien Bldrs., 270 App. Div. 482, 485; Wells v. Merrill, 204 App. Div. 696, 698). Defendants have elected to follow the latter course of procedure. A proper determination of the question requires passing upon disputed factual issues and the construction and interpretation of legal documents upon which the claimed rights of the respective parties are based. In the exercise of a proper discretion, it is concluded that the objection should be reserved for the trial. If the defendants are so advised, they may move for leave to serve an amended answer alleging the objection that plaintiff is not the real party in interest. We do not reach the merits of the application. (Appeal from two orders of Ontario Special Term (1) denying motion by defendants for dismissal of the complaint and (2) granting leave to defendants to renew the motion but again denying motion to dismiss.) Present — Williams, P. J., Bastow, Halpern, McCluskey and Henry, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order unanimously modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: An objection uncler section 210 of the Civil Practice Act that a plaintiff is not the real party in interest must he taken by the defendant either in his answer or by a motion addressed to the pleading. (2 Carmody-Waite, New York Practice, p. 551; Massi v. Alien Bldrs., 270 App. Div. 482, 485; Wells v. Merrill, 204 App. Div. 696, 698). Defendants have elected to follow the latter course of procedure. A proper determination of the question requires passing upon disputed factual issues and the construction and interpretation of legal documents upon which the claimed rights of the respective parties are based. In the exercise of a proper discretion, it is concluded that the objection should be reserved for the trial. If the defendants are so advised, they may move for leave to serve an amended answer alleging the objection that plaintiff is not the real party in interest. We do not reach the merits of the application. (Appeal from two orders of Ontario Special Term (1) denying motion by defendants for dismissal of the complaint and (2) granting leave to defendants to renew the motion but again denying motion to dismiss.) Present — Williams, P. J., Bastow, Halpern, McCluskey and Henry, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

10 A.D.2d 897, 199 N.Y.S.2d 680, 1960 N.Y. App. Div. LEXIS 10767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-hopkins-nyappdiv-1960.

Opinion

Related

Cite This Page — Counsel Stack