144 N.Y.S. 974 | N.Y. App. Div. | 1913
Plaintiffs, a German firm doing business in Frankfurt-on-Main, Germany, and also in the city of New York, were represented in that city by one Adolph Rothbarth, who held their power of attorney. They kept accounts in two New York city banks, the Mercantile and the Liberty, upon both of which said Adolph Rothbarth had authority to draw checks in plaintiffs’ name. The defendants are, or were, stockbrokers. The plaintiffs’ claim is that Adolph Rothbarth used plaintiffs’ funds with which to speculate in stocks through defendants as brokers, and that defendants knew that the moneys paid to them by Adolph Rothbarth for the purposes of speculation were plaintiffs’ funds and that said Adolph Rothbarth had no authority to use said moneys for such purposes. The action is now on trial before a referee.
In the course of the trial defendants learned, for the first time, that in December, 1910, plaintiffs had made a composition agreement with four of their creditors, to wit, Fannie Rothbarth, their mother, a Frankfurt bank, and the Mercantile and Liberty Banks of New York city. By this agreement they undertook to pay twenty per cent of their indebtedness to each of said creditors in cash, and to give notes for forty per cent thereof, such notes to be payable out of the proceeds of any recoveries which might be had in this and certain other similar actions against other defendants, and to be payable only out of such proceeds. To secure these notes they agreed to execute and did execute to George H. Engelhard and Hjalmar H. Boyesen, as trustees, assignments of this and the other causes of action, in trust to receive the sums realized therefrom and to pay over such sums in accordance with the composition agreement. By the terms of the assignment the trustees are to have no voice in the conduct or settlement of the action, but are merely empowered to receive the proceeds when realized, and to distribute them. Upon ascertaining the fact of this assignment defendants moved that Engelhard and Boyesen be substituted as parties plaintiff. They opposed, as did the plaintiffs, but the motion was granted to the extent of joining them as plaintiffs. Both plaintiffs and the trustees appeal. The principal reason urged by defendants why the order should be
The ground upon which the motion was granted, as stated by the learned justice at Special Term, was that “It has been repeatedly held that the Court, in order to dispose of the rights of parties, may direct the bringing in of all the parties having any interest in the proceeding, however remote.” The motion was thus apparently granted under the provisions of sections 452 and 453 of the Code of Civil Procedure, which, however, are not applicable because the court can determine the controversy as between the original parties to the action, without the necessity for importing new parties whose interests have been acquired since the action was commenced. The section of the Code applicable to the present motion is section 756, which provides as follows: “In case of a transfer of interest or devolution of liability, the action may be continued, by or against the original party; unless the court directs the person, to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case requires.”
We entertain much doubt whether under this section a new plaintiff can be substituted in an action, or even joined as plaintiff with the original plaintiff, upon the application of the defendant, and in face of the opposition both of the original plaintiff and of the person sought to be substituted or joined as plaintiff. Such is the effect of the decision in Lawson v.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Olarke, Dowling and Hotchkiss, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.