86 N.Y.S. 1080 | N.Y. App. Div. | 1904
It is manifest that as á creditor of Ms brother Leander, Henry Sire is not entitled to intervene in this action. Nor is he entitled to intervene by reason of the promise of Thomas concerning the payment of the ground rent. It does not appear that Thomas knew that Henry, to whom he made the promise, had any personal interest in the matter. Thomas had a right to assume that Henry was acting for his brother Leander. No satisfactory excuse is offered for his not obtaining the affidavit of Leander. It appears that he knows where Leander is, and we may take judicial notice that within a few days an affidavit coMd be forwarded from New Orleans. Henry shows no personal knowledge of any of the material facts. Even if it be assumed, therefore, that he has succeeded by assignment to the rights and interests of Leander in the premises, he has not shown by Competent proof that he has a meritorious defense to the action if he were admitted as a party. Moreover, he does not satisfactorily show an assignment of the rights and interests of his brother. It is only stated in an argumentative way, and only relates to the “ rights and claims that are to be litigated in the present controversy.” . The affidavit appears to be evasive, and it is doubtful whether the application was made in good faith. It may be that business men would allow their rights to rest in parol and execute written documents absolutely inconsistent with the existence of the parol agreements, but that is not the ordinary course, and the applicant who desires to intervene in an action to interpose such a defense should present a strong case to remove the suspicion of bad faith and give reason
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied in so far as it relates to the ■ application of Henry B. Sire to intervene and to have Thomas joined as a defendant, with ten dollars costs, and should be modified as already indicated so far as it relates to Leander’s application for an extension of time, and as modified affirmed, without costs.
Van Brunt, P. J., Patterson, O’Brien and MoLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied in so far as it relates to application of Henry B. Sire to intervene and to have Thomas joined as a defendant, with ten dollars costs, and modified as indicated in opinion so far as it relates to Leander Sire’s application for extension of time, and as modified affirmed, without costs.