33 Misc. 458 | N.Y. App. Term. | 1900
The action is against the American Surety Company of Hew York, upon an undertaking given by it on a warrant of attachment granted in an action brought in the Supreme Court, County of Hew York, in which one William K. Hawkins was plaintiff and Solomon L. Pakas defendant. Hawkins did not join in the execution of the undertaking, which is conditioned “ that if the defendant recover judgment in this action, or if the warrant of attachment is vacated, the plaintiff will pay all costs which
Section 452 of the Code of Civil Procedure, so far as applicable to the question under consideration, provides that “ where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in. And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment.” The Court of Appeals, construing this section in the case of Rosenberg v. Salomon, 144 N. Y. 92, 93, said: “ So much of that section as is a literal reenactment of the old section 122 applies only to equitable actions. We so held in Chapman v. Forbes, 123 N. Y. 532, but did not extend that construction to the new and added provision of section 452, which in terms permits persons not made defendants on their own application to come in and defend when they have an interest in the subject of the action the title to which may be affected by the judgment.” The attention of the General Term below was evidently not called to this authority, nor to the fact that the application could be made under the second sentence of the section in question. The appellant has clearly brought himself within the above-cited provisions of the Code. He is interested in the “ subject ” of the action, because involving the enforcement of the undertaking in suit; and the adjudication, in view of the fact that he has been notified by the Surety Company to defend the action and to hold it harmless, will be conclusive against him. Village of Port Jervis v. First National Bank, 96 N. Y. 550, 557.
The conclusion so reached with respect to the appellant’s interest in the “ subject ” of the action, as that term has been defined by the authorities, is amply sustained by the decisions announced since that of Rosenberg v. Salomon, supra. In Merchants’ Nat. Bank v. Hagemeyer, 4 App. Div. 52, the action was upon a promissory note made by the defendants Hagemeyer, as partners, under the firm name of George Hagemeyer & Son. Prior to the commencement of the action, the defendants Hagemeyer made an assignment for the benefit of creditors to one Hutchinson, who subsequently applied for an order permitting him to come in, as a defendant, on the ground that he was interested in the subject of the action. After stating that there was no specific property involved, the court said (p. 55): “ But he is interested in the subject of the action if a judgment obtained therein will be binding either prima facie or conclusively upon him as fixing the amount of the Hagemeyers’ indebtedness to the plaintiff. The assets of the assigned estate in his hands must be devoted to the payment of the assignors’ debts as directed in the assignment; the pro rata shares of creditors will be increased or diminished according to the establishment or rejection of the plaintiff’s cause of action. That situation certainly indicates an interest of the assignee in the result of the action.” After citing H. B. C. Co. v. N. Y. C. & H. R. R. Co., 153 N. Y. 396, and Chapman v. Forbes, supra, in connection with the definition of the word “subject ” as employed in the above-cited section of the Code, the court further said (p. 56): “Here we have both a definition of the word, viz, that it means 'the subject matter’ of the action, and a statement of the condition under which the third party will be allowed to come in, viz, when the judgment will form an obstacle to any claim which a third party may make against the defendants, which includes both a personal claim and one against property to be applied to
Having established that he had an interest in the subject of the action, within the meaning of the section in question, the court was obliged under the mandatory terms of said section to grant the appellant’s motion. Whether the appellant can interpose any of the defenses- to which he refers in his papers is a matter which we are not called upon to decide on this appeal, and upon which we express no opinion. The judgment of the General Term must be reversed and the order of the Special Term affirmed, with costs and disbursements in all courts to the appellant.
Order of the General Term of the City Court of the City of Hew York reversed, and order of the Special Term affirmed, with costs in all courts to the appellant. The period specified in the original order having expired, a suitable provision may be inserted in the order on the settlement thereof.
Beekmar, P. J., and O’Gorman, J., concur.
Order of General Term reversed and order of Special Term affirmed, with costs in all courts to appellant.