Brush v. Levy

66 N.Y.S. 700 | N.Y. App. Div. | 1900

O'Brien, J.:

That Silberman is not a necessary party is apparent; and it remains but to determine whether he is a proper party to an action wherein the plaintiff seeks to have canceled the lease which, it is alleged, the defendant procured through fraud.

It is not alleged that the plaintiff, was a party to the agreement made between the defendant, Mrs. Levy, and Silberman, or that her rights are in any way affected thereby. What the defendant, Mrs. Levy, claims is that even if plaintiff succeeds against her, she, Mrs. Levy by bringing Silberman in can have a determination in this same action of the question whether or not she is entitled to all the interests which Silberman secured under his lease from plaintiff. In- other words, the defendant, Mrs. Levy, proposes, in addition to the issue of fraud, which is one between herself and the plaintiff, to -introduce an entirely different issue, as between herself and Silberman, in which the plaintiff can have no interest.

The rule is that the plaintiff may select the forum, the parties to be sued and the cause to be litigated, and it is only where a completé determination of the action cannot be had that the court will require the presence- of such other parties. ' (Code Civ. Proc. § 452.)

That a determination can be reached between plaintiff and defendant on the issue of fraud without Silberman is evident, and it cannot be said that he has any interest in the subject-matter of this action which relates-to a lease made by the plaintiff to Mrs. Levy. If Silberman is brought in the issue will be entirely different, and instead of a controversy between plaintiff and Mrs. Levy as to whether the latter procured a lease by fraud, there will be presented the question as to what rights Mrs. Levy acquired "when she took the bill of sale and léase from Silberman —a matter in which the plaintiff has not the slightest interest and which she would neither be prepared nor expected to litigate.

To allow.Mrs. Levy to bring in Silberman, nolens miens, and compel him to litigate their differences in this action, would undoubtedly benefit Mrs. Levy; but as the plaintiff has no interest in these differences and Silberman has no interest in the subject of plaintiff’s- action, nor is his. presence necessary to a complete determination thereof, the plaintiff’s objection to the introduction of issues' and parties, which as to her are foreign, should be sustained. Without considering the question from Silberman’s standpoint as to whether he can be forced into this litigation against his protest, we think, considering the plaintiff’s-objections alone, that Silberman, on Mrs. Levy’s motion, should not have been made a party defendant.

If Mrs. Levy can prove that- she has succeeded to Silberman’s interests in the leases to him, then no misrepresentation was made and she has a perfect defense in this action. This she can prove as well without as with the presence of Silberman. If' she fails in her defense and has some grievance against Silberman, she has her remedy by an independent action. We do not think, however, that in order to save- Mrs. Levy the trouble and expense of another action, the plaintiff should be obliged -to amend her complaint in such a way as to permit the introduction of issues to be tried, as between the defendants, in which she, as plaintiff, has no legal interest. The rule that the court favors a course that will avoid multiplicity of actions, cannot be extended so as to benefit a defendant at the expense of a plaintiff.

We think the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, to the plaintiff and Silberman, separate bills.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, to plaintiff and Silberman, separate bills. .