Opinion
April 7, 1960
Appeal from the Ontario Special Term.
Present — Williams, P.J., Bastow, Halpern, McCluskey and Henry, JJ.
Order unanimously modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: An objection under section 210 of the Civil Practice Act that a plaintiff is not the real party in interest must be taken by the defendant either in his answer or by a motion addressed to the pleading. (2 Carmody-Waite, New York Practice, p. 551; Massi v. Alben Bldrs., 270 App. Div. 482, 485; Wells v. Merrill, 204 App. Div. 696, 698). Defendants have elected to follow the latter course of procedure. A proper determination of the question requires passing upon disputed factual issues and the construction and interpretation of legal documents upon which the claimed rights of the respective parties are based. In the exercise of a proper discretion, it is concluded that the objection should be reserved for the trial. If the defendants are so advised, they may move for leave to serve an amended answer alleging the objection that plaintiff is not the real party in interest. We do not reach the merits of the application.