121 Misc. 642 | N.Y. Sup. Ct. | 1923
Both these motions are made by the defendant, under section 193, subdivision 2, of the Civil Practice Act, as amended by the Laws of 1923, chapter 250, in effect September 1, 1923, to bring in, as a party defendant, the defendant’s chauffeur. The actions are brought to recover damages resulting from the defendant’s negligence in the operation of an automobile. The complaints allege that the automobile was operated at the time by one of the defendant’s employees. The secretary of the defendant submits an affidavit alleging that the employee operating the car at the time of the accident was one George Rohn, the party sought to be made a party defendant. The notices of motion with the accompanying affidavit were served upon the plaintiffs and upon the said Rohn. No appearance was made by Rohn. The defendant’s secretary, in his affidavit, also alleges that he has been
Before the amendment of 1923, section 193 of the Civil Practice Act provided that “ where one of the parties to an action claims that a person not a party thereto is or will be liable wholly or in part, for the claim made against him in the action, the court on application of such party must direct such person to be brought in and direct the service upon such person of the pleading, alleging the claim against him.”
This section was construed by the Appellate Division of this department in March of this year (Fedden v. Brooklyn Eastern District Terminal. 204 App. Div. 741), and it was there held that a master, who is^ sued for his servant’s negligence, for which the servant is personally hable to the master, has an absolute right on motion to have the servant brought in as a codefendant. After this decision was rendered, the section was amended (Laws of 1923, chap. 250, in effect September 1, 1923) by striking out the part above quoted and substituting therefor the following: “ Where any party to an action shows that some third person, not then a party to the action, is or will be Hable to such party wholly or in part for the claim made against such party in the action, the court, on appHcation of such party, may order such person to be brought in as a party to the action and direct that a supplemental summons and a pleading aUeging the claim of such party against such person to be served upon such person and that such person plead thereto, so that the claim of such moving party against such person may be determined in such action, which shall thereupon proceed against such person as a defendant therein to such judgment as may be proper.”
It is apparent that this amendment was made as a direct result of the decision in the Fedden case. For instance, Mr. Justice Kapper in the opinion says: “ Of course, it is not to be assumed that where an employee is made a codefendant with his employer on the latter’s motion, the rendition of an inconsistent verdict would be permitted. The rights and HabiHties of the parties remain as the settled law requires.” Compare this to the last
An amendment was adopted, in 1910, to the General Rules of Practice, as a result of which rule 23 read as follows: “ All motions for relief to which a party is not entitled as matter of right shall be made upon papers showing merits, and the good faith of the prosecution or defense, which may be shown by any proof that shall satisfy the court.” Prior to this time, the rules did not provide for papers showing merit in applications for relief to which the party was not entitled as a matter of right. In the present Civil Practice Rules there is no rule containing the provisions of rule 23 of the General Rules of Practice. That rule has no successor. It was surplusage. It never was, and is not now, necessary. It was merely declaratory of an obvious principle of practice. Applications addressed to the discretion of the court always were and now are made upon papers showing merit.
The defendant’s moving papers do not show merit. While the third party is liable to the defendant for any recovery that may be had by the plaintiff in this action, no reason has been advanced for bringing him in as a party defendant to this action. The defendant is directly responsible to the plaintiff for the negligence of its servants. The plaintiffs have elected to assert their claims against the defendant alone and, in the light of the amendment, as was said by Mr. Justice Kelly in his dissenting opinion in the Fedden case, they “ should be allowed to try it without the delay and the confusion resulting from litigating the rights of others, depending on other facts and other rules of law.” This should be the rule, unless the defendant shows merit in its application in each case, a good and sufficient reason for the granting of its motion.
Motions denied, with ten dollars costs.
Ordered accordingly.