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ROBERT R. SCOTT CORP. v. KWITMAN & SON, INC.

3 Misc.2d 812 (1955)

Robert R. Scott Corp., Respondent, v. D. Kwitman & Son, Inc., Appellant.

Supreme Court, Appellate Term, First Department.

June 30, 1955.

Attorney(s) appearing for the Case

Morris J. Mayer for appellant.

Albert Lyons and Frederick E. M. Ballon for respondent.

SCHREIBER and HECHT, JJ., concur; HOFSTADTER, J., concurs in reversal, but votes that dismissal be without prejudice to a new action by the real party in interest.

Per Curiam.

The uncontradicted evidence, admitted without objection by plaintiff, established that plaintiff was not the real party in interest. In the circumstances, the failure to plead that plaintiff was not the real party in interest was not fatal (Whiting v. Glass, 217 N.Y. 333; Massi v. Alben Builders, 270 App. Div. 482).

Furthermore, plaintiff, having chosen to keep the contract alive,...

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