205 A.D. 707 | N.Y. App. Div. | 1923
Plaintiffs, as copartners, are suing the two defendants upon policies of insurance issued by them, covering the same goods, for a loss of said goods by a burglary. The policies are separate, but each of the defendants is liable only pro rata for the loss.
Section 211 of the Civil Practice Act provides as follows: “All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative; and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities.”
Section 212 of the same act provides: “ It shall not be necessary that each defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.”
Owing to the recent enactment of the Civil Practice Act, there have not been many decisions construing the sections involved. Said sections, however, were adopted from the English Practice Act (Buies of the Supreme Court, order 16, rules 4, 5), and have been the subject of many decisions of the courts of that country. It is the policy of the English courts to accord a liberal construction to the rules of this order, with a view to simplifying the practice
That there are common questions involved in the case at bar cannot be denied. Respondent concedes that there are in common, first, the fact of the alleged burglary; second, the value of the stolen merchandise. It would seem, also, that the pro rata liability for loss under the policies presents another common question of fact; and since the insurance policies are substantially the same in form, there may also be present common questions of law.
The respondent urges that it is entirely discretionary with the Special Term whether or not to grant the motion; but the respondent loses sight of the fact that the burden of proof is upon the party objecting to show undue prejudice. The defendant has not shown any undue prejudice to it by reason of this joinder.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarke, P. J., Dowling, Merrell and McAvoy, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.