70 N.Y.S. 930 | N.Y. App. Div. | 1901
This action was commenced on the 20th day of August, 1891, by Cornelius MacArdell, a stockholder of the Houston and Texas Central Railway Company, in behalf of himself and all other stockholders of said company similarly situated, who might come in and contribute to the expense thereof. The purpose of the action,
The basis- of the action is an alleged conspiracy- between the officers and principal stockholders of the Houston and Texas Railway Company, Olcott, Downs and others, by which, through collusion, the decree in foreclosure was unnecessarily and illegally consented to for the purpose of injuring the plaintiff and other stockholders.
The petitioner and appellant owns 900 shares of stock of the Houston and Texas Railway Company of the par value of $100 each. He and other stockholders of said last-named company on the 23d day of December, 1889, filed a bill in equity in the United States court in Texas wherein the decree of foreclosure was granted, to have the same vacated on account of the conspiracy which is the basis of this action, and prayed that they might be permitted to come in and defend said foreclosure suit, and for other relief.
An affidavit was read in opposition to this motion, showing that the complaint, a copy of which was annexed in the suit in the United States court, was dismissed, and that on appeal to the Circuit Court of Appeals the dismissal was aflfirmed, and a further appeal to the United States Supreme Court was dismissed on November 13,1893. (Carey v. Houston & Texas Central Railway Company, 150 U. S.
The Statute of Limitations is also interposed as a bar to petitioner’s being admitted as a party plaintiff to this action.
It clearly appears from the petitioner’s bill in equity in the United States court that he was familiar with all the material facts upon which it is sought to obtain relief in this action, more than ten years before applying to be made a party plaintiff herein. Before he made such application this action had been pending for nearly ten years without having been brought to trial. ¡No explanation has been offered as to why the application was thus delayed, nor is any fact stated or suggested indicating any change in the attitude of the plaintiff with reference to the conduct of this action which renders it essential that petitioner be admitted to protect his rights.
Section 448 of the Code of Civil Procedure which authorizes one person to sue on behalf of himself and others similarly situated where they are interested in common, is a re-enactment of section 119 of the Code of Procedure, and in substantially the same language. Under the Code of Procedure it was held and declared to be the rule in equity that parties for whom the action was brought, but who were not named as plaintiffs, pbtained no vested right until the entry of an interlocutory judgment, whereupon, by an order of the court, they were required to come in and prove their claims, and in default thereof, in the absence of fraud, they were forever barred from participating in the fund sought to be reached by the judgment. Until interlocutory judgment the parties named as plaintiffs had exclusive control of the suit and might settle or discontinue the same at will, and the defendant might, upon adjusting the plaintiff’s claims and paying their costs, have the complaint dismissed. The reason for this rule was that until entry of judgment each other party was at liberty to bring an individual suit, but that upon the rendition of judgment in one it inured to the benefit of all, and the-prosecution of all other suits would then be stayed. (Mattison v. Demarest, 1 Robt. 717; Derby v. Yale, 13 Hun, 273 ; Kerr v. Blodgett et al., 48 N. Y. 62 ; Travis v. Myers, 67 id. 542.)
But admitting, without deciding the question, that if this suit- be prosecuted to judgment -by the plaintiff, the petitioner will be entitled to share in the recovery, it by no means follows that he has an absolute right to be admitted as a party plaintiff after acquiescing in the conduct of the litigation by the plaintiff who brought it for nearly ten years,- until the Statute of Limitations had run against his bringing an independent action for the same relief. If, in an action brought in this form under section 448 of the Code of Civil Procedure, an interested party has an absolute right to come in and be joined as a party plaintiff, we may with propriety limit such right to his making an application while his claim is valid and enforcible. by an independent suit. If the contention of appellant were to prevail, he would have the same right to be admitted as a party plaintiff to this action fifty years hence, if it were then pending. The Code provisions should not be so construed as to establish that doctrine.
McLaughlin and Hatch, JJ., concurred; Patterson, J., concurred in result.
Order affirmed, with ten dollars costs and disbursements to each respondent appearing separately.