
    Fulton Auto Exchange, Inc., Respondent, v. Barney Salitsky and Others, Appellants.
    Supreme Court, Appellate Term, Second Department,
    March 20, 1935.
    
      Samuel Pivar, for the appellants.
    
      Martin Koeppel, for the respondent.
   Per Curiam.

The action is to replevin an automobile. There was proof which, if credited, would warrant a finding that the defendants were the owners of the automobile in question. Upon proof that the defendants had been paid the amount of their loss by an insurance company, the court erroneously dismissed the defendants’ defense and counterclaim upon the ground that the defendants were not the real parties in interest. Such payment did not establish any devolution of title to the insurance company, nor is the plaintiff entitled to any benefit as the result of such payment. (Merrick v. Brainard, 38 Barb. 574; Collins v. New York Cent. & Hudson R. R. R. Co., 5 Hun, 503; Brabham v. Baltimore & O. R. Co., [C. C. A.] 220 Fed. 35; Geary v. Metropolitan Street R. Co., 73 App. Div. 441.) Assuming, however, that there was a transfer of title, section 83 of the Civil Practice Act expressly permits these defendants to continue the action, unless the court otherwise directs, where the transfer was subsequent to the commencement of the action. (Betts v. De Selding, 81 App. Div. 161; 2 Carmody N. Y. Practice [1929 ed.], 790, p. 1447.)

Judgment and order unanimously reversed upon the law, and a new trial granted, with thirty dollars costs to appellant to abide the event.

All concur; present, Cropsey, Lewis and Bonynge, JJ.  