I dissent. What is termed in the prevailing opinion as a power of attorney is I think more than that. It assigns Quan Kai's interest in the claim against defendant to the plaintiff. It is true the words "assign" and "transfer" are not used, but an inspection of the instrument will show that the plaintiff is not only authorized to bring an action in his own name but he is also authorized to "sell, assign, transfer or dispose" of the ore or the claim which is the *Page 483 subject-matter of this action. The authority thus given to the plaintiff necessarily implies a transfer of title to the plaintiff. Where one is given authority to do a particular act, he is deemed to have whatever is necessary for its performance. The plaintiff, therefore, is a real party in interest. The defendant would be fully protected in paying any judgment recovered by him in the action. (Sheridan v. Mayor, etc., ofN Y, 68 N.Y. 30.)
At the close of the evidence defendant's attorney recognized the instrument as an assignment when he asked for the direction of a verdict in favor of the defendant. The basis of his motion was "that the plaintiff had failed to prove any sale or delivery by plaintiff's assignor to the defendant." He did not then even suggest, much less move to dismiss the complaint or for the direction of a verdict on the ground that the plaintiff was not the real party in interest.
I think the judgment is right and should be affirmed.
HISCOCK, Ch. J., CARDOZO, POUND and LEHMAN, JJ., concur with ANDREWS, J.; McLAUGHLIN, J., reads dissenting opinion, with whom CRANE, J., concurs.
Judgments reversed, etc.