Greene v. Germania Fire Insurance ( 1874 )

Van Brunt, J.

— The complaint in this action is demurred to upon the ground that the plaintiff has not legal capacity to sue. The complaint alleges that on the 8th of December, 1868, William R. Greene, Christopher R. Greene et al., copartners under firm name of William R. Greene & Co., commenced an action in the circuit court of Warren county, in the state of Mississippi, in the name of said firm, and to the use of the plaintiff, Edward A. Greene, and recovered judgment, &c. That the action was brought upon a policy of insurance issued by the defendant to said William R. Greene & Co., and which policy was, at the time of bringing said action, the property of said Edward A. Greene, and that said action was brought for his use and benefit, and that he is the legal and rightful owner of said judgment.

The complaint shows that the suit was brought in Mississippi, according to the common-law form, viz., the suit must be brought in the. name of the assignor to the use of the assignee. In such actions the plaintiff is merely a nominal plaintiff; he cannot control the suit; neither receive payment nor in any manner affect the rights of the real parties in interest. The nominal plaintiffs are not in any manner trustees of an express trust. In fact they have no power or authority whatever; thay have not the slightest interest in the action, and the courts have always recognized the party for whose use the action is brought to be the real party plaintiff (Southgate agt. Montgomery, 1 Paige Ch., 41). If the plaintiffs in the action in Mississippi were in any respect trustees, section 113 of the Oode might apply; but I cannot see in what sense they are trustees. They have no interest whatever .in the judgment. Edward A. Greene is the sole and real party in interest, and it seems to me that the action is well brought by him.

Demurrer must be overruled, with leave to answer on payment of costs.