133 N.Y.S. 741 | N.Y. App. Div. | 1912
Appeal from an order made on the motion of the Chelsea Exchange Bank directing that it be made a party defendant.
The complaint alleges that Gillespie, Walsh & Gillespie had a contract with the city for building the new police headquarters for $662,250, payable in installments as provided, and that the firm proceeded to perform until December 31, 1907, when a
The city alleges in its answer, for a partial defense, that theretofore and before the commencement of this action, and on or about the 1st day of May, 1907, Gillespie, Walsh & Gillespie, by an instrument in writing and under seal, duly assigned to the Chelsea Exchange Bank of the city of New York the sum of $20,000 of the retained percentages due orto grow due for and by virtue of said contract, and duly delivered said assignment to the Chelsea Exchange Bank and to defendant; that by virtue of said assignment the Chelsea Exchange Bank became entitled to said sum of $20,000 and has all right, title and interest thereto and the plaintiff, as trustee in bankruptcy by reason of the assignment aforesaid, is deprived of all right and title to the said sum. The Chelsea Bank, setting up the same matters, moved that it be made a party defendant.
The learned Special Term granted the motion upon the authority of Gittleman v. Feltman (191 N. Y. 205). But in that case the motion was made by plaintiff to bring in as a defendant a third person claimed to be a joint tort feasor with the other defendants, and the precise question which the Court of Appeals answered in the affirmative was: “ Has the Supreme Court, upon the motion of the plaintiff, in an action to recover damages for personal injuries resulting from negligence, the power to bring in as defendant a party not named as a defendant at the time of the commencement of the action against the objections of the defendants originally named and of the proposed new defendant ? ” and said: “ The true test, doubtless, is as to whether the person could have been joined as a party at the comm encement of the action, and whether the plaintiff has given a satisfactory excuse for his failure so to do.”
It is evident, we think, that the case cited does not apply. This is a motion, not by the plaintiff, but by the bank seeking to have itself made a party defendant, and the only statutory authority for such a proceeding is found in the 2d sentence
In Bauer v. Dewey (166 N. Y. 402) plaintiff brought an action to recover §2,500 as compensation for services as a real estate broker. One Delack made a motion to intervene, alleging that he was entitled to one-half the commissions. The Special Term granted an order permitting Delack to intervene and that order was affirmed by the Appellate Division by a divided court (56 App. Div. 67). An appeal was allowed and this question certified: “ 1. Has the Supreme Court power to compel the plaintiff, in an action in which a money judgment only is sought, and in which the title to specific property is not involved, to bring in as a defendant a third party on his own application, and to order a supplemental summons and complaint served upon him ? ” The court unanimously answered that question in the negative and said: “The purpose of this action was to recover a debt of the defendant to the plaintiff. The title to no real, specific or tangible personal property was involved. The claim of Delack was that by virtue of an agreement between himself and the plaintiff’s assignor, he was entitled to one-half of the defendant’s debt. * * * If Delack were permitted to become a party to the action, other issues than those involved between the plaintiff and the defendant would be presented. Instead of its being an action merely to determine whether the defendant was indebted to the plaintiff, and if so, the amount, it would be transformed into an action involving not only that issue, but the fraud of the plaintiff’s assignor and in effect constitute an action to set aside a receipt or paper signed by Delack. We are of the opinion that section 452 furnishes no authority for such an order.”
There is no substance in the claim here that a specific fund is being pursued because the city certified at the inception of the contract that it had the money to pay and because the complaint alleges that there are funds in the possession of the
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.