Long v. Burke

105 A.D. 457, 94 N.Y.S. 277

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1905
• Status: Published

Opinion

O’Brien, J.:

Upon this appeal the question is presented as to whether in an action in which a money judgment only is sought, the plaintiff can be compelled to bring in as a defendant a third party who applies to the court to be permitted to intervene. The question is not a new one and until the decision of the Court of Appeals in Bauer v. Dewey (166 N. Y. 402) it was involved in some doubt.

In approaching the subject it is important to determine under what section of the Code of Civil Procedure the present application is made; whether under section 452 or section 820, both of which relate to the intervention of third parties as defendants. The latter section, however, which is an alternative to interpleader, relates only to an application made by the defendant to bring in a third party, either where it is made to appear that such third party makes a demand against the defendant for the same debt or property, or that the defendant disputes in whole or in part a liability asserted against him by different claimants, or that he has some interest in the subject-matter of the controversy which he desires.to assert. It will be observed that the present application does not come under any of the provisions of this section, which, therefore, need not be further considered.

Section 452 of the Oode of Oivil Procedure reads as follows: “ The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.” It will be noticed that the 2d sentence of this section relates to applications made by .third parties to be allowed to become defendants, and it is, therefore, under this latter sentence that the applicant must seek the relief which he demands.

As bearing upon his right to be made a defendant, the controlling authority for many years was Chapma/n v. Forbes (123 N. Y. 532) where, upon an appeal from an order granting a motion made by the defendant to bring in an additional defendant, it was held, as correctly stated in the syllabus, that “ The plaintiff in an action at law who seeks nothing but a money judgment cannot be compelled to bring in other parties than those he has chosen to make defendants.” Subsequent to that decision the construction generally accorded by the courts to the language of the opinion was that the relief provided for by section 452 of the Oode of Civil Procedure should be confined to equity actions, and was not available in common-law actions, so called, in which a money judgment alone was sought. This construction was, however, modified somewhat by the later cases of Rosenberg v. Salomon (144 N. Y. 92) and Hilton Bridge Construction Co. v. N. Y. C. & II. R. R. R. Co. (145 id. 390), and, as modified, was followed by this court in Montague v. Jewelers & Tradesmens Co. (44 App. Div. 225).

In Rosenberg v. Salomon (supra), speaking of section 452 of the Oode of Civil Procedure, the court said: “ So much of that section as is a literal re-enactment of the old section 122

* applies only to equitable actions. We so held in Chapman v. Forbes (123 N. Y. 532), but did not extend that construction to the new and added provision of section 452, which in terms permits persons not made defendants, on their own application, to come in and defend when they have an interest in the subject of the action the title to which may be affected by the judgment.”

Without additional discussion as to how far the cases cited, and others that could be added, were justified by the language used in the opinion of Rosenberg v. Salomon (supra), we must regard the question now presented as being entirely covered and settled by the decision of the Court of Appeals in Rauer v. Dewey (supra) to which we first referred. As therein said : “ While it must be admitted that there were statements in the opinions in these cases (Rosenberg v. Salomon, supra, and Hilton Bridge Construction Co. v. H. Y. C. & H. R. R. R. Co., supra), which, if given full effect, might perhaps be regarded as a modification of the decision in the Chapman case, still, when we consider only the questions decided in those cases, they are not in conflict with the doctrine of that case. Moreover, it is evident that the court had no intention of overruling or modifying it, or to hold otherwise than that in an action at law, where the plaintiff seeks a money judgment only, he cannot be compelled to bring in parties other than those he has chosen.” And, as correctly formulated in the head note, it was therein decided: “ The Supreme Court has no authority under section 452 of the Code of Civil Procedure to compel the plaintiff in an action in which a money judgment only is sought, and in which the title to no real, specific or tangible personal property is involved, to bring in as a defendant a third party on his own application.”

Applying the rule thus enunciated, which is controlling upon us, it follows that this motion should have been denied. It is obvious that this is neither an equitable action nor an action at law in which the title to “ real, specific or tangible personal property is involved,” and, therefore, the court had no power to compel the plaintiff, where he seeks a money judgment only, to bring in a third party on his own application as an additional defendant. The general rule has always been that in such an action the plaintiff has a right to determine whom he will sue, and he is not to be subjected to the increased burdens and the liability for more than one bill of costs in favor of additional defendants, merely because third parties are of the opinion that they could successfully resist the plaintiff’s attempt to collect the money judgment from the particular person whom he has, in his own action, selected as a sole defendant.

The order appealed from must accordingly be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Patterson, Hatch and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Code Proe. § 122.— [Rep.