Bauer v. . Dewey , 166 N.Y. 402 ( 1901 )

The last question certified is not a question of law which this court can determine. There is a conflict in the affidavits as to the facts relating to the transaction out of which the debt of the defendant arose. Whether Delack had any interest in it was a question of fact to be determined by the Special Term upon the affidavits submitted. With that we cannot deal.

The only question before this court is whether, under section 452 of the Code of Civil Procedure, the Supreme Court had authority to compel the plaintiff to bring in as a defendant a third party upon his own application where only a money judgment is sought and no specific property is involved. The provision of the Code relied upon is as follows: "And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment."

The purpose of this action was to recover a debt of the defendant to the plaintiff. The title to no real, specific or tangible personal property was involved. The claim of Delack was that by virtue of an agreement between himself and the plaintiff's assignor, he was entitled to one-half of the defendant's debt. Under these circumstances can it be said that Delack was so far interested in the subject of this action as to entitle him to be made a party upon his own application? If the principles stated in the opinion in Chapman v. Forbes (123 N.Y. 532) are still the law, that case is conclusive authority against the construction adopted by the courts below. It is, however, insisted that the doctrine of that case, so far as it relates to the question here presented, has been overruled, or at least modified to an extent which renders it inapplicable by the cases of Rosenberg v. Salomon (144 N.Y. 92) andHilton Bridge Construction Co. v. N.Y.C. H.R.R.R. Co. (145 N.Y. 390, 396). In the Rosenberg case the title to specific personal property was involved, which the plaintiff brought replevin to recover. The action was against the sheriff who had taken the property by virtue of an execution. It was there held that the judgment debtors had such an interest in the property as to authorize the court to allow them to come in and defend. TheHilton Bridge Company case was to foreclose a mechanic's lien, and it was held that it was an action in equity, and, consequently, under the doctrine of the Chapman case, section 452 conferred upon the court authority to bring in a third person upon his own application.

While it must be admitted that there were statements in the opinions in these cases which, if given full effect, might perhaps be regarded as a modification of the decision in theChapman case, still, when we consider only the questions decided in those cases, they are not in conflict with the doctrine of that case. Moreover, it is evident that the court had no intention of overruling or modifying it, or to hold otherwise than that in an action at law, where the plaintiff seeks a money judgment only, he cannot be compelled to bring in parties other than those he has chosen. This case very well illustrates the effect of permitting parties to intervene in such actions. If Delack were permitted to become a party to the action, other issues than those involved between the plaintiff and the defendant would be presented. Instead of its being an action merely to determine whether the defendant was indebted to the plaintiff, and if so, the amount, it would be transformed into an action involving not only that issue, but the fraud of the plaintiff's assignor and in effect constitute an action to set aside a receipt or paper signed by Delack. We are of the opinion that section 452 furnishes no authority for such an order.

The order should be reversed, with costs; the first question certified answered in the negative, and the second, not being a question of law, should not be answered.

PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, VANN and LANDON, JJ., concur.

Order reversed, etc.