U. S. Life Insurance v. Gage
New York Supreme Court
Motion on behalf of the defendant, Wellesley W„ Gage, to vacate the summons in this action, upon the ground that no leave to sue had been obtained.
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Motion on behalf of the defendant, Wellesley W„ Gage, to vacate the summons in this action, upon the ground that no leave to sue had been obtained. The U1 S. Life Insurance Co., in the city of New York, brought this action against George W. Poillon, and others, the heirs at-law of Cornelius Poillon, deceased, and Wellesley W. Gage and others, creditors, to charge with a judgment for deficiency, obtained in an action for the foreclosure of a mortgage by the said decedent, the interests of his heirs-at-law in a certain fund on deposit with a trust company, being part of the proceeds of a sale…
1Opinion of the CourtO’Brien, J.
Mr. Justice Barrett, who had the question here presented before him, in another form, is of the opinion, in which I • concur, that this motion should be denied, without prejudice to defendant’s right to raise the question by answer in the nature of a supplement.
The question now presented is whether leave to sue was ever necessary. This is a serious question and should be left to the trial, where a ruling can be had upon which a review upon the merits may be obtained. The cases where the courts have dismissed suits on motion were such as depended upon judicial action, like the taking of bonds…
2Cases cited31 opinions
- Trustees of Columbia College v. . ThacherNew York Court of Appeals · 1881
- Fulton Bank v. New-York & Sharon Canal Co.New York Court of Chancery · 1833
- Wisner v. . OcumpaughNew York Court of Appeals · 1877
- Peck v. . GoodberlettNew York Court of Appeals · 1888
- Cass v. . HigenbotamNew York Court of Appeals · 1885
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3Cited by2 opinions
- Gabay v. DoaneAppellate Division of the Supreme Court of the State of New York · 1902
- Ferris v. TannebaumNew York Court of Common Pleas · 1891