Weed v. First National Bank

101 N.Y.S. 1045 | N.Y. App. Div. | 1907

Cochrane, J.:

The action was originally instituted by William B. Weed as sole plaintiff. Thereafter, Florence J. Steenburgh was, by order of the court on her own motion, permitted to intervene as a party plaintiff and to appear as such plaintiff bj her attorney. Such order was granted without opposition, after notice to the original plaintiff Weed. From the papers used on the present motion it appears that it was made “ upon the consent of the respective parties.”

The propriety of such order, granted as it was without objection by the original "plaintiff, cannot here be questioned. That such an order may lead to friction between plaintiffs as a • result of their uncongeniality, or. because of divergent motions as to the manner in which the litigation should be conducted, is demonstrated by the present controversy. It is also apparent that such a dual relationship of coplaintiffs may lead to confusion in practice worse confounded. But those are arguments which should have been directed against the order of intervention. The status as a coplaintiff of the respondent Steenburgh having been judicially fixed with the practical consent of the original plaintiff, such intervening plaintiff is now entitled to the same rights, privileges and consideration to which she would be entitled had she jointly with the plaintiff Weed originally instituted the action with his consent and co-operation.

Viewed from this standpoint, the "question as to the propriety of bringing in another person as a party defendant resolves itself into a proper exercise of discretion by the Special Term ip an effort to subordinate as much as possible the internecine warfare between the coplaintiffs to their common interests, and to make such a disposition of the question as will best subserve those interests.

The plaintiffs as stockholders of the defendant bank seek to maintain the action for the benefit of the bank and all its stockholders to recover of certain directors of the bank for losses claimed to have been sustained by reason of their alleged negligence and malfeasance as such directors. The proposed defendant Lester was also a director, and is claimed by the plaintiff Steenburgh to be liable in this action. Hence this motion on the part of such plaintiff to bring in Lester us a defendant, which motion is resisted by the other plaintiff Weed.

The court will not on this motion consider whether a cause of ■ action exists against the proposed defendant. That question must be determined in the usual way after the action shall be at issue as to 'him. Suffice it to say that it may be desirable in the interests of the stockholders generally that Lester should be a defendant. On the other hand, it is not apparent how the plaintiff Weed can be prejudiced by the presence of Lester as a defendant; except by the possible contingency of costs in case Lester should be successful in the litigation. The discretion of the Special Term was not improperly exercised,,except that the plaintiff Weed should have been pror tected against such costs. A plaintiff who seeks to force on his coplaintiff, against the protest of the latter, a litigation with a party not already identified with the action should be willing to assume responsibility for the costs of such litigation if unsuccessful.

The order should, therefore, be modified by requiring the respondent Steénburgh to give to the appellant Weed a bond to be approved by a justice of the Supreme Court, to protect said Weed against all costs which, may be awarded in favor of the proposed defendant, and as thus modified" affirmed, without costs. Unless the respondent .Steenburgh complies with this modification within twenty days the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concurred, except Smith, «L, who voted for reversal; Parker P, J., not sitting.

Order modified by requiring the respondent Steenburgh to give to appellant Weed a bond, to be approved by a justice of the Supreme Court, to protect said Weed against all costs which máy be awarded in favor of the proposed defendant, and as thus modified affirmed, without costs. Unless the respondent Steenburgh complies with this modification within twenty days the order must be reversed, . with ten dollars costs and disbursements, and motion denied, with ten dollars'costs.