Schnaier v. Schmidt

13 N.Y.S. 728, 37 N.Y. St. Rep. 641, 59 Hun 626, 1891 N.Y. Misc. LEXIS 1658

Opinion

Daniels, J.

The motion seems to have been made upon the allegation contained in the plaintiffs’ complaint that Schmidt was a member of the plaintiffs’firm. But assuming that to be the fact, still the defendants had no right, after the trial of the action and its determination, to require that Schmidt should be made a party plaintiff in the suit; for it appeared by the complaint that he had refused to be joined with the other plaintiffs as a party, and on account of that refusal had been made a defendant. This practice has been fully provided for by section 448 of the Code of Civil Procedure, and made the action as to parties entirely regular. That refusal fully determined his relation to the controversy, and the action afterwards regularly progressed to a trial and judgment with him only as a defendant. His right to become a plaintiff had been lost by his own conduct, and it could not afterwards be insisted upon as it was in support of this motion. The order was right, and it should be affirmed, with $10 costs, and also the disbursements.