Commissioners of the State Insurance Fund v. Wilaka Construction Co.

The action is by a compensation carrier on a subrogated claim. The complaint contains an allegation that the injured person has an interest in the outcome of the litigation. Defendant moves to strike that allegation from the complaint. It appears that this question has never previously arisen in this department, and in the two departments where it has been adjudicated, the fourth and the second, opposite results have been reached (Commissioners of State Ins. Fund v. Clark Carting Co., 274 App. Div. 559; Liberty Mut. Ins. Co. v. American Stevedores, Inc., 278 App. Div. 661). The result depends…