Citation Numbers: 129 Misc. 126
Judges: Rodenbeck
Filed Date: 1/22/1927
Status: Precedential
Modified Date: 2/5/2022
The defect alleged in the complaint is the failure to state that the assignee is authorized to sue. The question of leave to sue is undoubtedly controlled by the statute (Debtor and Creditor Law, § 14, as added by Laws of 1914, chap. 360). The assignee may sue but it must be “ under the direction of the court.” The general rule applicable to a receiver requiring leave to sue or be sued (Witherbee v. Witherbee, 17 App. Div. 181, 183) is applicable to an assignee. The failure to obtain leave to sue is, however, not a jurisdictional defect. (Hirshfeld v. Kalischer, 81 Hun, 606; Pruyn v. McCreary, 105 App. Div. 302, 304.) The failure to allege leave to sue does not make the complaint demur
Motion denied but action stayed until leave to sue is obtained, without costs to either party.