Hand v. Burrows , 22 N.Y. Sup. Ct. 481 ( 1878 )

Daniels, J.:

As this case was decided upon the demurrer of the Atlantic National Bank, it Avas settled that the receiver of that bank should have been made a party defendant in the action. The demurrer Avas overruled but it appeared by the complaint that in this respect there Avas a defect of parties. (Code of Civil Procedure, § 488,^, subd. 6.) The defendants Buitoavs, Raynor, Root, Allen, Sheldon and Scribner did not demur, but answered, all of them separately, except' the defendants Raynor and Root, Avho joined in their answer. They all consequently Avaived the objection, which the bank presented by the demurrer. For when such an oU.v. appears, as it did on the face of the complaint, it can be taken only by demurrer. (Code of Civil Procedure, §§ 498, 499.) When the order was made allowing'the receiver to be joined as a defendant in the case, no change was required to be made in the statement of facts upon which the plaintiffs sought to maintain their action. But he was brought in so that he would be concluded by the judgment, in case one should be recovered by the plaintiffs, and the defendants would avoid being subjected to the risk of another action for the same cause at his suit. This required no change in the issues joined by the answer already served. And the order made provided for no such change. Still, the leave given to join the receiver as a defendant was burthened with the requirement that the plaintiffs should pay the defendants all their; costs up to the time of mailing the order — those who answered separately being severally allowed such costs. As to the defendant that demurred, this may have been proper; but the other defendants had no title to these costs, because the issues between themselves and the plaintiffs required no change by the addition of the receiver of the bank as a defendant. As to them, these terms were in no legal sense of the word proper; and it is only to such as are just in themselves that the court can subject the moving party, when leave of this nature shall be applied for and given. (Code of Civil Procedure, § 723.)

There were no facts affecting the application which were any more fully before the Special Term, on the hearing of the application, than they now are before this court. They can consequently be as effectually and properly considered here as they were there; and, from such consideration, it is evident that the terms imposed upon the plaintiffs were more onerous than were required by the circumstances of the case.

The order affected a substantial right, and for that reason an unqualified right of appeal exists to the General Term, although the relief applied for involved the exercise of discretion (Code-of Civil Procedure, § 1347, sub. 4); and when such a right exists, full effect can only be given to the appeal hy a complete ■review of every consideration affecting the disposition of the case. It is not a restricted, but a general appeal that the parties have been secured in cases of that description. And, under this authority, this order should be so modified- as to allo.w the.- amendment, on the payment of the costs of the bank, including, costs of opposing this motion, which was the only defendant, legally .availing itself of the, objection that the receiver had been, improperly omitted as a defendant in the action; and as so modified, it should be,affirmed without costs of this appeal.

Ingalls, P. J., concurred:. Present — Ingalls, P. J., and Daniels, J:

Order modified as directed in opinion, without - costs to either pai’ty. on the appeal.