Opinion
March 22, 1943.
Order denying plaintiff's motion to strike out as sham the third defense contained in defendant's answer reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Where, as in the instant case, plaintiff merely has received loans for the amount of her loss, as evidenced by loan receipts providing that the loans were repayable out of any moneys received by the plaintiff on account of her loss, the insurance companies are not subrogated to plaintiff's claim against defendant, and, therefore, plaintiff is the real party in interest. ( Luckenbach v. McCahan Sugar Co., 248 U.S. 139; Adler v. Bush Terminal Co., 161 Misc. 509, affd. 250 App. Div. 730.) Despite the holding in Purdy v. McGarity ( 262 App. Div. 623 [Third Dept.]), relied upon by the Special Term, in our opinion the nature of the transaction is dependent solely upon the terms and provisions of the loan receipts which evidenced the agreement under which the moneys were advanced by the insurance companies to the insured; and, in determining this question, it is immaterial whether the insurer's liability is conditional or absolute. Carswell, Johnston, Adel, Taylor and Lewis, JJ., concur.