Feeter v. Van Scott Bros.

This is a motion to dismiss, made pursuant to CPLR 3211 (subd. [a], par. 10), on the ground that the plaintiffs’ fire insurance carrier is a real party in interest herein because it is subrogated to certain of plaintiffs’ rights, and, it not having been joined, the “ court should not proceed ’ ’ in its absence.

Following destruction of plaintiffs’ house by fire on August 23, 1970, plaintiffs executed a “ loan receipt ” in favor of Utica Mutual Insurance Company (Utica) in consideration of the receipt of $43,500 under their homeowners’ insurance policy. In addition to the insured loss, the…