p. 113Isabella M. Burton, Respondent, v. J. Howard Burton, Appellant.Headnote
Party — an action continued in the name of the original plaintiff after he has made an assignment f or creditors.An action to recover upon a promissory note may be continued in the name of the original plaintiff under section 756 of the Code of Civil Procedure, notwithstanding the fact that the plaintiff, after commencing the action, has made an assignment for the benefit of creditors, especially as he is interested in the action to the extent of any surplus remaining in the hands of the assignee.
Qumre, whether such an objection can be raised for the first time upon the trial of .the action.
Appeal by the defendant, J. Howard Burton, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of March, 1899, upon the verdict of a jury, and also from an order entered in said, clerk’s. office on the 24th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.
Charles F. Holm, for the appellant.
R. MoC. Robinson, for the respondent.
' This appeal presents a single question. The plaintiff, in 1892, became the indorsee of the payee of a promissory note made by the defendant. This action was brought in 1896 and came to trial in 1899. A* the trial the defendant offered in evidence “ this assignment for the benefit of creditors made by Isabella M. Burton to Theodore M. Henry, filed January 9th, 189Y. Objected to; sustained ; exception.” It is contended that this was error. I think that the action might be continued in the name of the original party. (Code Civ. Proc. § 756 ; Lawson v. Town of Woodstock, 37 Hun, 352 ; Cuff v. Dorland, 7 Abb. N. C. 194 .) There is a further consideration mentioned in the first authority cited which makes such continuance proper aside from the privilege afforded by the statute. Under such an assignment the assignor is still interested. If the
p. 114assignee collect anything, it pays the assignor’s debts, and any surplus would go to the assignor. In
McGean v.
Metropolitan Elevated R. Co. (
133 N. Y. 9 ), where the objection raised was that the plaintiff had transferred his realty pending the trial, the court held that section 756 was sufficient authority, unless the court directed that the grantee be made a party, and that such question could not be raised for the first time upon the trial, but must be presented either by motion or by supplemental pleading,
•The judgment and order appealed from must be affirmed, with costs.
All concurred, except Sewell, J., taking no part.
Judgment and order affirmed, with costs.