CUFF v. DORLAND

CUFF v. DORLAND. N. Y. Supreme Court, First Department; Special Term and Chambers, December, 1878. Parties.—Assignment. —Transfer of Interest.—Code of Civ. Pro. § 756. - A party succeeding to plaintiff’s rights, in an action by purchase, during the pendency thereof, may continue to prosecute it in the name of the original-plaintiff, the same as though no change of interest had taken place. Motion by defendant to open a judgment taken by default. This action was brought by Patrick Cuff against Jane A. Dorland, to compel specific performance of a contract for the sale of a parcel of land in New York city. At a second trial, granted by the court of appeals (57 N. Y. 560), defendant’s default was taken. Upon this motion it was claimed, among other things, excusing the default, that the plaintiff,. since the commencement of the action, had become bankrupt, and his interest in the contract on which the action was brought had been sold, and the plaintiff and his assignee had, by order of the court, executed an assignment thereof to the purchaser; that the action was not then in the name of the real party in interest, and that, relying upon a certain proposed stipulation being agreed to, the defendant had not applied for leave to serve a supplemental answer setting up these facts. Edward F. Brown and P. IT. Yernon, for defendant and motion. Henry E. Davies, Jr. {Davies & Whitehead, attorneys), for plaintiff, opposed. [MAJORITY — Daniels, J.] Daniels, J. [After permitting the default to be opened on payment of costs by defendant.]—There is no reason for allowing the service of a supplemental answer. For the party succeeding to the plaintiff’s right in the case may continue to prosecute the action in his name, the same as though no change of interest had taken place (Code, § 756). Should the costs not be paid, then the motion will be denied. But in case of payment the cause will be again restored to the calendar for trial.