30 Misc. 830 | City of New York Municipal Court | 1899
We think the order appealed from was a proper one and should be affirmed, with the modification hereafter mentioned, until the trial of this action.
Plaintiff was justified in believing that only the defendant wronged and injured her. Then, for the first time, it appeared that defendant and the Westchester Electric Railroad Company were interested in the operation of the railroad upon which plaintiff was injured, that the interest of the defendant and the Westchester Electric Railroad Company was so interwoven as to become apparently identical and probably inseparable, at least so far as the rights of the plaintiff are concerned in this action. It was, therefore, right and proper to bring in and cause these apparently joint wrongdoers to bear the burden of their wrongdoing, if any, against plaintiff, but the summons and complaint should be amended so as to contain the proper and necessary allegations charging them with the commission of the tort in question and, as so amended, served on both defendants, with leave to them to answer or demur, and that a new notice of trial should also be served. We can see no harm, however, in leaving the action on the calendar and keeping its present place. In doing this we are simply following the spirit of the Code of Civil Procedure which allows preference in like actions.
The order appealed from is affirmed, as modified herein, without costs or disbursements to either party.
Present: Eitzsimons, Ch. J., and McCarthy, J.
Order modified and, as modified, affirmed, without costs.