82 N.Y.S. 1038 | N.Y. App. Div. | 1903
The plaintiff complains in replevin.' After the levy, a stranger filed a third party.claim with the sheriff. Thereupon the plaintiff moved at Special Term for an order to bring in the third party by supplemental summons. The motion was opposed, but the court made the order, and the third party appeals. I think that' the order should be reversed. The 1st sentence of section 452 of the Code of Civil Procedure is substantially and almost literally a re-enactment of a part of section 122 of the Code of Procedure. Rosenberg v. Salomon (144 N. Y. 92) decides that so much thereof applies only to equitable actions, citing Chapman v. Forbes (123 N. Y. 532).
As to the latter part of section 452, additional to section 122 of the Code of Procedure, Chapman v. Forbes (supra) holds.: “ The person who is not a party to the action, and who has an interest in the subject thereof, must, by the terms of the section, himself make application to be made a party.” King Co. v. Seed (6 Misc. Rep. 4) is an authority in point. It is true that the order in the King Co. Case (supra) was obtained.ex parte, but the case still presents - the feature that the application was made by the plaintiff.
Whether the third party applies or resists, defines an important difference. If he chooses to litigate his title in the action, then he takes the disadvantage incident to his choice. But if he is brought in against his will, he is deprived of the benefit of section PT09 of the Code of Civil Procedure. Nor is it an answer that the plaintiff could have made him a party originally, because if this had been done, the third party would have had the protection of the undertaking, which he now1 has not, and he could have excepted to the sureties or have reclaimed the property, which he now cannot do. These considerations moved the court in Hochman v. Hauptman
I think that the opinion of this court in Schun v. Brooklyn Heights R. R. Co. (82 App. Div. 560) does not control the case at bar. Sohun’s case arose upon negligence, and the court thought that section 723 of the Code of Civil Procedure, in accordance with the dissenting opinion of Follett, J., in Heffern v. Hunt (8 App. Div. 585, 591) and a decision of the General Term of the City Court of New York in Romanoski v. Union Railway Co. (30 Misc. Rep. 830), was broad enough to warrant the relief afforded. This case arises upon replevin, and section 723 is not of such paramount force in this case as tó justify relief pursuant to its provisions in disregard of the other sections of the Code of Civil Procedure cited and applied in this opinion.
The order should be reversed, with costs.
Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.
Order reversed, with ten dollars cost and disbursements.
