Majority
p. 535FOX et al. v. PEACOCK et al. (Supreme Court, Appellate Division, First Department. November 15, 1912.) Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.
Headnote
Appeal and Error (§ 330*)—Substitution of Parties—Assignees.Under Code Civ. Proc. § 756, providing that, in case of a transfer of interest, the action may be continued by or against the original party, unless the court directs transferee to be substituted, an action may be continued on appeal against the original defendants, though they assigned their interest in the subject-matter, and a motion to substitute the assignees as respondents be denied.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1837-1841; Dec. Dig. § 330.*]
♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Special Term, New York County.
Action by Hugh C. Eox and others against George H. Peacock and another, in which plaintiffs appeal. On motion to substitute defendants’ assignees as respondents. Motion denied.
William P. Langevin, of New York City, for the motion.
Wetherhorn & Link, of New York City, opposed.
The plaintiffs alleged a cause of action against these defendants. They failed before the referee, and the defendants obtained.a judgment on their counterclaim. The plaintiffs have appealed from the judgment for the defendant upon that determination and have clearly the right to review it.
The action may be continued by and against the original parties, notwithstanding the assignment, under section 756 of the Code of Civil Procedure.
The motion should therefore be denied, with $10 costs.