Howard v. Taylor

11 How. Pr. 380, 5 Duer 604, 1855 N.Y. Misc. LEXIS 10

Opinion

Bosworth, Justice.

This motion is made under § 121 of the Code. No notice of it has been given to John C. Brown, and the motion is not made by him, nor on his behalf. He has not had a chance to be heard. He may deny that he has bought the right of action. If the motion was granted, a third person might be made plaintiff in the action, not only without his knowledge, but against his will. If he claims to have purchased the subject matter of the action, he should move to be substituted, if he wishes to be made plaintiff upon the record, and should move on notice to the plaintiffs as well as to the defendants.

But if he should move for such a substitution, and it should be apparent that the main motive for the change was the present plaintiff’s witnesses, the court might impose, as a condition, that he stipulate not to call them as witnesses. (6 Howard, Pr. R. 220.)

In the case of such a change of interests, pendente lite, it is discretionary with the court to allow, or refuse to allow, a substitution of the purchaser as plaintiff. Where a substitution cannot prejudice any right or remedy of the defendant, it would be almost a matter’of course to permit it. When such a result would be produced by the change, the court would either refuse to permit it, or would grant it only on such terms as would protect the defendant from injury.