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The Real Party in Interest, 34 Yale Law Journal 259 (1925)


Ever since the adoption of the original New York Code of i848 it has been a fundamental requirement of code pleading that every action should be prosecuted in the name of the real party in interest, with an exception in favor of an executor or administrator, a trustee of an express trust or a person expressly authorized by statute. The framers of the Code, in explaining the occasion for the provision, referred to the common law prohibition against the assignment of a "thing in action" and stated this to be the condition of the parties: "If the assignee sues at law, he is turned out of court, and if the assignor sues in equity, he is turned out also." They added: "The true rule undoubtedly is that which prevails, in the courts of equity, that he who has the right, is the person to pursue the remedy. We have adopted that rule."

The provision in question has received comparatively little attention from commentators, but has been the subject of widely diverse opinion in the courts. It is believed that a discussion of the problems raised by it in perhaps its two most striking aspects-assignments of choses in action and subrogation-in relation to its historical background and to its connection with the general purpose of the code may serve to clarify it.

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