White v. Drake
New York Supreme Court
Demurrer to an answer. William E. White sued Albert A. Drake for $83.25, ■being the amount of several choses in action assigned' to said Drake, by one Robert Woodruff. The defendant in his fourth answer alleged as follows : “Defendant, for a further and separate defense, alleges on his information and belief that the plaintiff is not the real party in interest, but that said Wood-ruff is the real party in interest.”
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Demurrer to an answer. William E. White sued Albert A. Drake for $83.25, ■being the amount of several choses in action assigned' to said Drake, by one Robert Woodruff. The defendant in his fourth answer alleged as follows : “Defendant, for a further and separate defense, alleges on his information and belief that the plaintiff is not the real party in interest, but that said Wood-ruff is the real party in interest.” To this part of the answer the plaintiff demurred on the ground that it was insufficient in law upon its face, and constituted no answer or defense to the complaint or any part…
1Opinion of the CourtBarrett, J.
I. The answer is demurrable. It attempts to set up new matter; that is, matter which could not be proved under a denial nor unless set up (Jackson v. Whedon, 1 E. D. Smith, 142; Savage v. Corn Ex. Fire Ins. Co., 4 Bosw. bottom of p. 15, and top of p. 16).
II. And it is bad on demurrer, for the reason that no fact is stated—nothing but a conclusion of law. The action must of course be prosecuted in the name of the real party in interest, but whether it is so prosecuted depends upon the facts (Russell v. Clapp, 3 Code R. 65; Bentley v. Jones, 4 How. Pr. 204 ; Brown v. Ryckman, *13512 How. Pr. 314;…
2Cases cited3 opinions
- Witherspoon v. Van DolarNew York Supreme Court · 1857
- Holstein v. RiceNew York Supreme Court · 1857
- Tamisier v. CassardNew York Supreme Court · 1863
3Cited by4 opinions
- Continental Securities Co. v. Interborough Rapid Transit Co.New York Supreme Court · 1922
- Wenk v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1903
- Willey v. Cameron, Michel & Co.Appellate Division of the Supreme Court of the State of New York · 1926
- Wenk v. City of New YorkAppellate Division of the Supreme Court of the State of New York · 1903