60 N.Y.S. 680 | N.Y. App. Div. | 1899
On May 19, 1890, the defendant issued to A. F. Flint a certificate of membership, by which it agreed, in consideration of the payment of certain fees, dues and assessments, to pay “to Henry E. Droz * * * such amount as, upon ■ the- death of A. F. Flint, it may be proven by said Henry E. Droz that he was indebted to him at that time, and the remainder, if any, to Rachel Flint, his wife, * * * the sum of $5,000.” Droz died on December 7, 1893, and letters testamentary .upon his estate were issued to this plaintiff. Flint died March 13, 1898, and thereafter this action was begun by the plaintiff to recover the entire amount of the $5,000 payable under the certificate of membership. A motion was made by the defendant to have Mrs. Flint brought in as a co-defendant, which motion was denied, and the order denying the motion was subsequently affirmed by this court: (Montague v. Jewelers Tradesmen's Company, 41 App. Div. 530.)
Thereafter Mrs. Flint herself moved, under section 452 of the ■Code of Civil Procedure, for leave to be made a party defendant, alleging that A. F. Flint, her husband, was not indebted to Henry E. Droz in the sum of $5,000, and that she, and not the plaintiff,
The appellant insists that the instances in which section 452 of the Code of Civil Procedure has been applied to actions at law are those which háve had for their subject the title "to some specific, property, and not the recovery of a sum of. money only. That contention was disposed of by this court in the case of Merchants' Motional Bank v. Hagemeyer (4 App. Div. 52), where it-was-said : “ In a common-law action, where a money judgment only was sought, a plaintiff had the right to make; defendants only such persons as were directly liable upon the contract or cause of action sued upon,, and he could not be compelled to bring in any other persons. (Chapman v. Forbes, 123 N. Y. 532.) There is no inherent powei; in the court to introduce a third party. * * * But the 2d subdivision of section 452 Of the Code of Civil Procedure has made a new rule which authorizes a third party oñ ■his own application, but not otherwise, to become a defendant in an action at law under certain circumstances. (Rosenberg v. Salomon, 144 N. Y. 92.) The provision,of the Code referred to is as follows: ‘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.’ "
' In the Hagemeyer case it wás held that it would be .giving too-limited' a construction .to the provision of the Code to say that it applied merely ¡to actions in which, either directly Or incidentally, the title tó property may be affected ; and by that case, which was an action on a promissory note against the assignors, the -assignee for creditors wás given the right to be made a party to the action.
The section, therefore, applies to actions both at law and in equity, and the question in each .case to- be determined where the party himself makes the application is whether or not he has an interest in the subject of the action. Here it is sought to recover upon a Certificate of membership, and the amount the plaintiff Can recover will be limited to the amount of the indebtedness which the representatives of Broz show was due him by Flint. What is over and above that sum is payable to Mrs. Flint, and she has,' therefoiej a
The subject of the action being the amount due upon the certificate of membership, in which controversy Mrs. Flint has an interest, she has the right under the construction heretofore given to section 452 of the Code of Civil Procedure, to be made a party. We held upon the former appeal that the defendant could not compel her. to come in; but as said in Merchants' National Bank v. Hagemeyer (supra), the Code “ has made a new rule which authorizes a third, party, on his own application, but not otherwise, to become a defendant in an action at law under certain circumstances.”
We think that the order below was right and should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Barrett, Patterson and Ingraham, JJ.j concurred.
Order affirmed, with ten dollars costs and disbursements.
