Smith v. . Zalinski
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made December 30, 1881, which affirmed a judgment in favor of plaintiff, entered "upon the report of a referee. (Reported below, 26 Hun, 225.) This action was brought to foreclose a mortgage executed by defendants Zalinski and wife.
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Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made December 30, 1881, which affirmed a judgment in favor of plaintiff, entered "upon the report of a referee. (Reported below, 26 Hun, 225.) This action was brought to foreclose a mortgage executed by defendants Zalinski and wife. The action was commenced by Gilman, the mortgagee, but after issue joined the court on motion made, on due notice to Zalinski, who alone appeared and answered, and on proof as the order recited that the present plaintiff had become vested “ with…
1Opinion of the CourtFinch, J.
The theory on which this case was tried, and the judgment rendered was affirmed by the General Term, is that in case of a transfer of the plaintiff’s interest 'after an action commenced in his name, an order substituting the transferee as plaintiff without directing an amendment of the complaint beyond such substitution, or supplemental pleadings, which order is made on notice to the defendant, is such an adjudication of ownership and title in the substituted plaintiff as excludes that question from the issues to be tried, and leaves only to be examined those orginally framed, and which the…
2Cases cited3 opinions
- Riggs v. . PursellNew York Court of Appeals · 1878
- Underhill v. CrawfordNew York Supreme Court · 1859
- Ford v. DavidThe Superior Court of New York City · 1857
3Cited by23 opinions
- Williams v. . BarkleyNew York Court of Appeals · 1900
- Crary v. KurtzSupreme Court of Iowa · 1906
- Fox v. McGrathCourt of Appeals for the Second Circuit · 1945
- Greenwood v. . MarvinNew York Court of Appeals · 1888
- Gibson v. . Nat'l Park Bk. of N.Y.New York Court of Appeals · 1885
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