Opinion
November 30, 1942.
Appeal from an order denying defendant's motion to bring in plaintiff's father as a party plaintiff on the ground that he is the real party in interest. Order affirmed, without costs. The action may be prosecuted in the name of plaintiff. (Civ. Pr. Act, § 210.) Lazansky, P.J., Johnston, Adel and Taylor, JJ., concur. Hagarty, J.: I concur on the authority of McGarry Co. v. Weston Co., Inc., ( 247 App. Div. 795), adhering, however, to my view as expressed in my dissenting memorandum in that case. Appeal from an order granting plaintiff's motion for summary judgment. Order reversed on the law and the facts, without costs, and motion denied, without costs. The conflicting allegations in the affidavits are sufficient to warrant a trial of the issues. The fact that the defendant's counterclaim is against a person not a party to the action is not sufficient to warrant a dismissal thereof. The counterclaim may be maintained against this plaintiff up to the amount of plaintiff's demand. (Civ. Pr. Act, § 267, subd. 3.) Lazansky, P.J., Hagarty, Johnston, Adel and Taylor, JJ., concur.