Herriman v. Brooklyn, Flatbush & Coney Island R. R. Co. , 12 N.Y. St. Rep. 877 ( 1887 )

Dykman, J.

This is an action by a judgment creditor for the collection of a judgment against the defendant. The company is insolvent, and has made ■default in payment of the interest upon its bonds. A receiver was appointed m this action and the road has been operated by him since his appointment. Subsequently there was an action commenced to foreclose a mortgage upon the property of the company and the same receiver was appointed in that action.

James J. Powers is a general creditor of this company, and he made a motion in August, 1887, to be made a party to this action.

And that all the creditors of the company be required to exhibit and prove their claims before a referee to be appointed for that purpose and thereby make themselves parties to this action, and for other relief. The motion was ■denied, and we have an appeal from the order of denial.

We can discover no merit in the motion or in the appeal. When the motion was made the time was drawing near for the sale under the judgment in the action for the foreclosure of the mortgage, and after such sale the rights of all creditors of the company would attach to the surplus arising from the sale, it any was produced, and that would be distributed by the court among the parties entitled to the same after hearing all parties interested therein. Upon such hearing the claims of all the creditors, including Mr. Powers, will be adjusted, and hence there is no necessity for his intervention in this action. He will be protected equally well if the property of the company should be sold under a judgment in this action.

Besides all this, the litigation would be uselessly complicated and protracted "by granting this motion, and the rights of Mr. Powers will suffer no impairment by its denial.

The order appealed from should be affirmed, with $10 costs and disbursements.