Gerseta Corp. v. Gramatan National Bank of Bronxville

205 A.D. 868

Opinion

Marsh, J.:

In the view I take of this matter it is unnecessary to determine whether, or to what extent, section 473 of the Civil Practice Act

* may be unconstitutional. The demand for a declaratory judgment is an unnecessary element in the prayer for relief, although certain of its clauses might require consideration in framing conclusions of law after trial. I do not think that the action is barred by the Westchester county suit or judgment. The complaint fully recognizes the force of that judgment and the validity of the claim which it establishes, but seeks relief in respect to a situation in which the judgment is only one element and which was not subject to adjudication thereby. As between the plaintiff and Raw Silk Trading Company, the latter should have taken up the note. The plaintiff, therefore, is entitled to subrogation on being forced to pay. (Koehler v. Farmers & Drovers' Nat. Bank, 5 N. Y. Supp. 745; Pittsburgh-Westmoreland Coal Co. v. Kerr, 220 N. Y. 137.) "In actions of this kind, where the costs are in the discretion of the court, where provision can be made in the decree that will protect the parties, I do not think the bill should be dismissed because no tender of the amount due to the bank was made prior to the commencement of the action." (Koehler v. Farmers & Drovers' Nat. Bank, supra.) The defendant is not concerned with the rights of other creditors of the insolvent, even if there be any such rights equal to those of the plaintiff. (See Wilder v. Butterfield, 50 How. Pr. 385; Wright v. Austin, 56 Barb. 13.) The Raw Silk Trading Company, however, seems to be a necessary party to any action disposing of its collateral, and both parties consent that it be joined. The bank, however, cannot be deprived of the benefft of its judgment while the other parties are litigating the facts upon which the right of subrogation is based. (First Nat. Bank v. Wood, 71 N. Y. 405; Koehler v. Farmers & Drovers' Nat. Bank, 51 Hun, 418; Jones v. Bristow, 51 App. Div. 302.) The motion to dismiss the complaint is denied. The Raw Silk Trading Company is ordered to be brought in as a party defendant and a supplemental summons and complaint to be served by the plaintiff. The motion for an injunction is denied in so far as it seeks to restrain the defendant from enforcing the judgment, but granted to the extent of enjoining the transfer of the collateral except to the plaintiff.

See, also, Rules Civ. Prae., rules 210-214.— [Rep.