Opinion
Submitted May 17, 1943
Decided May 27, 1943
The primary question presented upon the appeal from the order denying the plaintiff's motion to strike out as "sham" the first affirmative defense contained in the answer was whether it conclusively appeared that the allegations of the defendant that the plaintiff had "duly assigned and transferred" its cause of action and is no longer the "real party in interest" are false and cannot possibly be sustained by any proof which may be produced. We considered and determined no other question. Until the facts are more fully disclosed the question cannot be determined whether the plaintiff is as matter of law the trustee of an express trust or for any other reason the "real party in interest" within the meaning of the statute. (See 290 N.Y. 697.)
Motion denied.