17 Abb. Pr. 318 | N.Y. Sup. Ct. | 1864
Lead Opinion
—The question here arises on appeal from an
The plaintiff assigned his interest in the demand in suit to Amory, who has made the advances to carry on the action since a trial was had before the referee. As the plaintiff retains a small interest only, and is now insolvent, the defendant desires that Amory, the responsible party, for whom the action is now prosecuted, shall be made a party-plaintiff, not only for the purpose of obtaining his liability for costs, but also for restitution in case the judgment shall be reversed, the said Amory having collected a large part of the judgment since its recovery.
The provisions of the Code relied on to sustain the motion are sections 121 and 173. Section 121 authorizes the action to be continued in the name of the original party, in case of a transfer of interest by means other than death, marriage, or disability. It provides also for allowing the person to whom the transfer is made to be substituted in the action. The latter .clause relates to the particular subject of introducing new parties to an action, by reason of an assignment of the interest of an original party. The language of this paragraph is poor authority for compelling a person to whom an interest has been transferred, pending an action, to become a party thereto.
In my opinion, the application is to be allowed in the discretion of the court, when the person to whom the transfer has been made demands it, and on the application of such party only. I am unable to perceive that authority to permit or allow an act to be done, can be construed as authority to compel it, against the wish of the person in whose favor the provision is made.
I have not overlooked the case of Shearman a. Coman (22 How. Pr., 517), decided at special term, but with great respect for the learned justice who made that decision, I am unable to concur in his views.
. Section 121 has superseded the practice of the late court of
Section 331 affords the defendant as effectual indemnity as to the costs, as he could have by substituting the assignee of the demand as the plaintiff herein. As to the liability of Amory for restitution in the event of the final success of the defendant, his remedy will not be improved, as the order cannot create a retroactive liability in this respect.
Section 173 relates to amendments. The court is thereby authorized to amend any pleading, process, or proceeding, by adding or striking out the name of a party. An amendment signifies the correction of something which was previously defective. It is not the office of an amendment to introduce new facts or parties, arising or becoming interested after the commencement of the suit. A supplemental complaint or answer is the proper practice in such cases.
The order appealed from should be affirmed, with costs.
I think the judge at chambers had power to grant the defendant’s motion; and as he denied it solely on the ground of want of power, I think the order should be reversed, irrespective of the question whether he ought to have granted the motion.
Concurrence Opinion
The justice at the special term based his decision on the ground that one party in an action cannot compel another person to become his adversary in the action under the Code of Procedure; and that section 121 of the Code does not warrant compulsion of this kind. Neither does the section relating to amendments warrant it. Whether the court has the inherent power to make such an order was not discussed below. The judge did not deem this a proper case, it is to be presumed, for entertaining the question. I concur with Judge Leonard in thinking that the order should be affirmed.
Order affirmed.