212 A.D. 714 | N.Y. App. Div. | 1925
The facts as shown by the moving affidavits upon which the defendant applied for said relief are undisputed, and it appears
It is alleged in the 5th, paragraph of the amended complaint that the plaintiffs bought from the defendant Sea Island Mills about 36,000 yards of imported shirting in the gray or unfinished state, according to sample exhibited. In the 6th paragraph of said complaint it is alleged that on or about March 29, 1919, plaintiffs entered into a contract with the defendant George P. Ide & Co., Inc., for the sale to said defendant of 15,000 yards of “ white
This is the only allegation of the complaint in anywise alleging any liability on the part of the defendant, appellant, to the plaintiffs. Upon said allegations judgment is demanded by the plaintiffs against the defendant George P. Ide & Co., Inc., in the sum of $10,494.08, or, in the alternative, for judgment against the defendants Frank A. Sayles, Charles I. Reed and Kenneth F. Wood, doing business under the firm name and style of Sayles Bleacheries, and Sea Island Mills, or either of them, in the sum of $25,000 damages.
The plaintiffs, on the eve of the trial and after the action had been at issue substantially three years, moved the court for permission to serve supplemental summonses and amended complaints upon said defendants. Unquestionably had the motion been opposed by George P. Ide & Co., Inc., the only defendant upon whom notice of such application was served, the same would in any event have been denied because of the laches of the plaintiffs. The order was granted upon the authority of section 193 of the Civil Practice Act. Said section (as amd. by Laws of 1923, chap. 250), so far as pertinent to the question presented upon this appeal, provides that: “ Where any party to an action shows that some third person, not then a party to the action, is or will be liable to such party wholly or in part for the claim made against such party in the action, the court, on application of such party, may order such person to be brought in as a party to the action and direct that a supplemental summons and a pleading alleging the claim of such party against such person be served upon such person and that such person plead thereto, so that the claim of
I do not think section 193 of the Civil Practice Act was intended to permit a plaintiff to bring in as a party defendant any party who might ultimately be liable to the plaintiff in the event that the original defendant was successful in the defense of the action. I certainly do not believe that it was the intent of the Legislature by said section of the Civil Practice Act to permit plaintiffs to bring in as a party defendant one against whom plaintiff might have another and distinct cause of action of an entirely different nature and which would be governed by entirely different rules. If the action should proceed against all of the present defendants we would have the involved situation of, first, determining the rights and liabilities between the plaintiffs and George P. Ide & Co., Inc., upon a contract for the sale of 15,000 yards of the finished goods known as “ silktone; ” second, the determination of the rights and liabilities of the plaintiffs and the defendant, appellant, under a contract for the purchase of 36,000 yards of unfinished goods; and, thirdly, the determination of the rights and liabilities between the plaintiffs and the Sayles Bleaeheries under some contract between the plaintiffs and said bleaeheries for the finishing of the goods. All three claims are entirely different in character. They rest upon different contracts and relate to different subject-matters. The action against George P. Ide & Co., Inc., is to recover for goods sold and dehvered and upon an account stated therefor. No cause of action is, in fact, alleged in the complaint as against the defendant, appellant. All that the complaint alleges is that if the defendant George P. Ide & Co., Inc., is successful, then one of the other defendants must be liable to the plaintiffs for damages, either the defendant, appellant, for faulty goods sold or Sayles Bleaeheries for imperfect finishing of said goods. It seems to me that the real intent of the Legislature in enacting section 193 was to permit a party who is charged with some sort of liability to bring in another party liable to contribute or indemnify the party charged. I do not think it was intended that entirely unrelated claims should be tried in one action. I do not think the order was permissible, as it did not appear that the parties sought to be brought in by the plaintiffs would be liable, wholly or in part, for the claim against the other defendants in the action. The parties sought to be brought in were in nowise liable upon the plaintiffs’ contract with George P. Ide & Co., Inc. I can see no reason why the defendant, appellant, Sea Island Mills, should be required to litigate its difficulties with the plaintiffs,
The order sought to be vacated by the appellant was granted ex parte and so far as it applied to the defendant, appellant, was a nullity.. The order sought to be vacated invaded substantial rights of the defendant, appellant. The order provided that the new defendants should be added and that service of the supplemental summonses and amended complaints should be made upon said defendants, and that the plaintiffs should not be required to serve any new notice of trial; that the cause of action should retain its original position on the calendar and proceed to trial in the regular order when reached. In short, the defendant, appellant, was brought into the action and forcfed to trial without any notice of the application for the order, without notice of trial or the filing of a note of issue. The trial of the cause was set down for a day certain before the summons was served upon the appellant and before issue was joined. Before the cause could properly be brought to trial as against the defendant, appellant, the plaintiffs were required tb serve upon said defendant, appellant, a notice of trial and to file the usual note of issue. (Pelzer v. Perry, 203 App. Div. 58; Davis v. Friedman, 196 id. 926; Haskin v. Murray, No. 1, 29 id. 370, 374.)
Subsequently to the service of the notice of trial and of the supplemental summons upon the defendant, appellant, the defendant George P. Ide & Co., Inc., moved at- Special Term to require a separate trial. Said motion was denied, the learned justice presiding at the Special Term at which said motion was heard holding that while the ex parte order bringing in the Sea Island Mills "was clearly a nullity, nevertheless, to grant a separaté trial would be to undo the order of another justice, and that the court
I am also of the opinion that the amended complaint failed to state facts sufficient to constitute a cause of action against the defendant, appellant, the only allegation affecting said defendant, appellant, being that found in the 16th paragraph of the complaint: “ That if the contention of the defendant George P. Ide & Co., Inc., is correct, then the other defendants are liable to the plaintiff herein therefor.” The only possible construction of said allegation of the complaint is that if George P. Ide & Co., Inc., be not hable for goods sold and delivered, then either the defendant, appellant, Sea Island Mills, or the members of the firm known as the Sayles Bleacheries would be liable to the plaintiff for goods sold and delivered. Certainly there can be no liability on the part of the defendant, appellant, to the plaintiffs for goods sold and delivered or upon an account stated. The only possible liability would be for damages for breach of warranty, and there is no allegation of the complaint sufficient to constitute a cause of action therefor.
The order appealed from should be reversed, with ten dollars costs and disbursements, defendant, appellant’s, application to vacate and set aside the order granted, and the complaint as against the Sea Island Mills dismissed, with ten dollars costs.
Clabke, P. J., Mabtin and Bube, JJ., concur.
I concur in the result reached upon the grounds that the complaint does not state a cause of action against the appellant; that plaintiff was guilty of laches, and could not deprive the appellant, who was made a party against its will, of its right to a notice of trial and note of issue.
If the aforesaid objections did not exist, however, I am of opinion that, there is present a common question of fact which would permit a joinder of the causes of action under the provisions of sections 192, 211 and 212 of the Civil Practice Act. The most important question in the case is the condition of the goods in the unfinished state when they were purchased from the Sea Island Mills. If not according to sample, then the Sea Island Mills is at fault and the other defendants are absolved; if according to sample, and there was no fault in the process of bleaching, then the plaintiff is entitled to recover against Ide & Co., and the other defendants are absolved; if according to sample, and damaged in
There would seem to be no reason why a court of unlimited original jurisdiction should not have the power to compel a joinder at the request of a plaintiff, subject only to a defendant’s showing that the exercise of this discretion will do injustice to him. If the provisions of the Civil Practice Act are hot thus liberally construed, then two or more trials will result instead of one, with the attendant uncertainties, delay and expense. Under the Code of Civil Procedure practice the discretion of the judge was largely circumscribed by the strict provisions of the Code. It has been stated that where the English system put on the judges the least possible restraint, the Code system made imperative a compliance with rigid rules, and left them to exercise no more discretion than was absolutely necessary. (Hepburn Development of Code Pleading, etc., in 2 Select Essays in Anglo-American Legal History, 687.) The Civil Practice Act has attempted to approach more nearly the English system. As was said by Crouch, J., in Sherlock v. Manwaren (208 App. Div. 538): “ While the Civil Practice Act has not gone so far as the English rules, it is apparent that the Legislature, by the provisions of sections 96, 192, 193, 209, 210, 211, 212 and 213, in connection with the revision and re-enactment of many other sections, has committed to the courts a wide discretion in the administration of litigated business'. The various sections relating to joinder of parties and causes are permissive merely. The right to join and the right to consolidated trial are subject to the exercise by the court, in the interest of justice, of its discretionary powers. But the policy which dictated the greater liberality demands that the court shall not, by the use of those powers, prevent what the law permits unless it is clear that some substantial right is in jeopardy; and the burden of showing that rests upon the party objecting. For instance, see Dexter Sulphite Pulp & Paper Co. v. Hearst, No. 1 (206 App. Div. 101); Fisher v. Bullock (204 id. 523); Schechtman v. Salaway (Id. 549); Bossak v. National Surety Co. (205 id. 707); Brokaw v. Lage (203 id. 155).”
In Bossak v. National Surety Co. (205 App. Div. 707) the court, in construing sections 211 and 212 of the Civil Practice Act, said: “ Owing to the recent enactment of the Civil Practice Act, there have not been many decisions construing the sections involved. Said sections, however, were adopted from the English Practice Act (Rules of the Supreme Court, order 16, rules 4, 5), and have been the subject of many decisions of the courts of that
Order reversed, with ten dollars costs and disbursements, and motion to vacate order so far as it applies to appellant and to dismiss complaint as to it granted, with ten dollars costs.