At the time the order appealed from was made, this action had been pending and at issue between the plaintiffs and other defendants for a long time. It had been referred to a referee for determination, and he had taken much evidence, and the cause had been finally submitted to him on the merits for decision. While the case was in this position, the motion which resulted in this order Avas made.
It is conceded by appellant’s counsel that the court had the power, under section 452 of the Code, to bring in the appellant and the other persons as parties defendant to the action. But, even if it could do that, it could not compel them to accept the referee Avho had been appointed, and to accept the evidence which had been taken,, even with the right of cross-examination which was secured to them. The action does not appear in the papers before us to be one which could be referred without consent. The appellant had the right to have the cause tried by the court or a jury, and he at least had the right to be heard as to the appointment of a referee, and he had the right to he present when the witnesses Avere sworn and examined.
*35 I do not perceive how the plaintiffs, in this action, conld properly have an order restraining the appellant from prosecuting his action against the insurance company. If for any reason he ought not to proceed in that action, the insurance company can have his proceedings stayed in that action.
The most orderly and probably the least embarrassing way for the disposition of all the controversies about this insurance policy is to proceed with the interpleader action now pending.
The order of the General Term must, therefore, so far as it affects the appellant, be reversed, and that of the Special Term must also be reversed as to him, except as to so much thereof as makes him a party defendant in this action, and, as thus modified, it must be affirmed, without costs in this court to either party.
All concur.
Ordered accordingly.