Uhlfelder v. Tamsen

17 Misc. 296, 40 N.Y.S. 372

Opinion

O’Dwyer, J.

The part of the order appealed from, should he reversed. •

The discretion referred to in Hart v. Kohn, 12 Misc. Rep. 648; 33 N. Y. Supp. 272, was a determination as to whether the party had .an interest. Here that question has been determined in favor of the applicant, and section 452 of the. Code of Civil Procedure is mandatory that, where the applicant has an interest, the court must direct him to be brought in. Rosenberg v. Salomon, 144 N. Y. 92.

That part of the order appealed from is reversed, with costs.

Van Wyck, Ch. J., concurs.

Portion of order appealed from reversed, with costs.