Opinion
For other decisions handed down on January 9, 1929, see 226 App. Div. ___ — [REP.
Appeal from Supreme Court, New York County.
Present — Dowling, P.J., Finch, McAvoy, Martin and O'Malley, JJ. Order modified as indicated in opinion and as so modified affirmed, without costs, with leave to the defendant to serve an amended answer within ten days from service of order upon payment of the costs awarded to the plaintiff by the order appealed from.
The Special Term was in error in holding that the fact that the plaintiff is not the real party in interest does not constitute a defense. (Civ. Prac. Act, § 210; Spooner v. D., L. W.R.R. Co., 115 N.Y. 22; Wittner v. Burr Avenue Development Corporation, 222 App. Div. 285.) However, to establish such defense in this case it should be made to appear that the adjustment made by the plaintiff with the insurance company was at least equal to the amount of the claim asserted by the plaintiff against the defendant. From all that appears from the allegations of the defense, the plaintiff may have adjusted his claim with the insurance company for less than $6,000. The order appealed from should, therefore, be modified by striking out the words: "In which said amended answer the subject-matter of the defendant's alleged defense may be set up as an objection but not as a defense that might defeat recovery," and as so modified affirmed, without costs, with leave to the defendant to serve an amended answer within ten days after service of a copy of the order to be entered hereon, upon payment of the costs awarded to the plaintiff by the order appealed from.