De Bost v. Albert Palmer Co.

1 How. Pr. (n.s.) 508

Opinion

By the Court (Daniels, J)

— In this case section 756 seems to confer a very broad discretion on the court, without any qualification whatever, to bring in a party who may have an interest in the suit. It has not been made conditional that the motion should be made on behalf of the plaintiff, but a general power is given to the court to bring in a party in the exercise of its discretion. That discretion has not been made in this case.

The order must be reversed in order that the court may exercise the power that the Code has conferred upon it.

Note.—Upon a rehearing of the motion before Lawrence, J., at special term, the motion was granted on the ground that while section 756 of the Code of Civil Procedure gave the court discretionary power, when a a case was made out under section 449 by proof of an absolute transfer, then as a matter of right the defendant was entitled to the order.— [Ed.