Horan v. Bruning , 101 N.Y.S. 986 ( 1906 )

Houghton, J.:

The action is in negligence for personal injuries, and was originally-brought against the defendant Anderson alone and issue joined by service of an answer by him. Thereafter the plaintiff learned facts which led him to believe that the respondent Bruning was also guilty of some act which led to the accident, and, without notice to him, he obtained an order making him a party defendant, with leave to serve a supplemental summons and complaint upon him. Bruning appeared specially and moved to set aside such -order on the ground that the court had no authority to make it, which motion was granted, and from the order made thereon ,the plaintiff appeals.

There is some confusion of authority as to whether the court has power in a simple action at law where a money judgment alone is sought to permit a plaintiff to bring in third parties as additional defendants to his action; but we thinlc the weight of authority and reason is that he has not, and that the order appealed from is right and should be affirmed.

The fourth department in Heffern v. Hunt (8 App. Div. 585) held that the court had no power to add as a party defendant an alleged joint tort feasor not originally made ¿i party; and the second department in Schun v. Brooklyn Heights R. R. Co. (82 App. Div. 560) held 'that it had in a negligence action, but that an order adding a defendant in a replevin action was unjustified (Goldstein v. Shapiro, 85 id. 83); and the third department in Ten Eyck v. Keller, (99 id. 106), in an action for conversion, held that no such power existed. . . •

Whatever power there is in the court is derived from sections 452 and 723 of the Code of Civil Procedure. Section 452 of the Code relates primarily to equitable actions (Rosenberg v. Salomon, 144 N. Y. 92), and that section gives the court no authority_ to compel the plaintiff in an action in which a money judgment only is sought, and in which the title to no real property or specific or tangible personal property is involved, to bring in as a defendant a third party even on his own application. (Bauer v. Dewey, 166 N. Y. 402; Long v. Burke, 105 App. Div. 457.) If, therefore, the court has any power in an action at law in which a money judgment alone is demanded to bring in a third party as a defendant, it must be found in section 723 of the Code. That section provides' that, in furtherance of justice, amongst other things, the court may, upon the trial, or at any other stage of the action, before or after judgment, “ amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party.”

The scope and meaning of the provision of the section quoted has been long before the courts, for almost the precise language is found in section 173 of the Code of Procedure. The prevailing and dissenting opinions in New York Milk Pam, Co. v. Remington’s Agricultural Works (25 Hun, 475) review the various decision's of the courts made up to the time they were written. The defendant in that .case was a corporation, and service had been made upon an officer, who was also a copartner with two others, dealing under the name, of the Remington Agricultural Company, ' which copartnership had taken over the contract from the corporation defendant, upon which action was brought: Upon discovering the situation the plaintiff moved to substitute the officer upon whom he had served individually for the corporation defendant,'and. to "add . his two other partners as defendants. The General Term concluded that inasmuch as one .of the partners had been served, the court had power to do this. The Court, of Appeals reversed the case (89 N. Y. 22) and held that such an act was not within the scope of section 723 of the Code, and that no such power existed. While in -that case there was a virtual changing of defendants, which is not the situation in the present case, the decision illustrates the fact that the section does not give power to the court to grant every kind of an amendment notwithstanding justice may be subserved thereby.

In Chapman v. Forbes (123 N. Y. 532) the action was for money had and received through .one Breen as the agent of plaintiff’s testatrix. The defendant admitted receiving the money, but plead that it belonged to Breen, and that Breen’s assignee had-brought action against him to recover it, and moved that such- party be made codefendant, and his motion was granted _ against plaintiff’s protest; but the Court of Appeals said such order was unauthorized. It is true that in that case, and in Bauer v. Dewey (supra), section 723 of the Code is not referred to, but it existed, and all of its broad provisions were in force, and if either order could have been sustained under the provisions of that section, presumably neither of them would liave been reversed, for both were in furtherance of justice and the quieting of litigation.

There seems to be no.more reason for dragging in a third party as a defendant- against his protest' than for refusing to permit him to come in against the protest of the plaintiff.- If there is no power to let him come in there is no power to compel him to do so. ■

It is true that the- plaintiff could have sued the appellant when he brought his action against the other defendant. It is also true that lie could select such of several tort feasors as he saw fit and bring action against them. In an action for personal injuries occasioned by the negligence of several persons there is a separate liability as well as a joint one, and the person injured may, at his election, sue both or either of the wrongdoers ; and there is no rule which makes all of them necessary parties to an action of that character. (Creed v. Hartmann, 29 N. Y. 592.) The plaintiff selected one, and he" cannot be permitted to add others as often as he likes, or as often as he discovers some facts which lead him to believe that some one 'else brought about his injury.

The question is quite distinct from the power to amend as to the name of a party, or to eliminate or add words respecting official or representative capacity in which the party sues or is being sued. In those cases the party is before the court as it was originally brought.

The order should be affirmed, with ten dollars costs and disbursements.

Patterson, P. J., and Clarke, J., concurred; Ingraham and McLaughlin, JJ., dissented.