Hilton Bridge Const. Co. v. Gouverneur & O. R. , 97 N.Y. Sup. Ct. 584 ( 1895 )

HERRICK, J.

This is an equitable action for the foreclosing of a mechanic’s lien. The defendant the New York Central & Hudson River Railroad Company heretofore made a motion to have the defendant Louis Marshall made a party to this action. The motion was granted. An appeal was taken therefrom, which was ultimately passed upon by the court of appeals in 145 N. Y. 390, 40 N. E. 86, where a full statement of facts of the action are set forth; and it was there held that the defendant Marshall was at least a proper, if not a necessary, party, as the assignee of the original contractor in the case. Thereafter the plaintiff, by supplemental complaint, brought in the defendant Louis Marshall as a party defendant. To that supplemental complaint the defendant Marshall demurred, which demurrer has been sustained in the court below.

That the defendant Marshall is a proper, if not a necessary, party to this action, has been heretofore decided by the court of appeals, and is not an open question to us here now. The only question open for discussion is whether the plaintiff has pleaded sufficient facts in his supplemental complaint to bring the respondent Marshall in as a proper or necessary party to the action. The Moffett, Hodgkins & Clarke Company were the original contractors in this action, the plaintiff being the subcontractor under them. In this supplemental complaint the plaintiffs have reiterated all the matters and things set forth in the original complaint, and set forth a judgment in an action wherein the Moffett, Hodgkins & Clarke Company were the defendants, and by which the defendants O’Brien and Booraen were appointed receivers of the said Moffett, Hodgkins & Clarke Company. Then follows this allegation:

“And, further, that it is claimed by the above-named defendant Louis Marshall that before the appointment of such receiver the Moffett, Hodgkins & Clarke Company assigned to him, the said Louis Marshall, all its interest in any sum which might be found due and owing to that company from the New York Central & Hudson River Railroad Company.”

It is claimed here by the respondent Marshall that such allegation is not sufficient as against him. As heretofore stated, the court of appeals has held that Marshall, as the assignee of the Moffett Company, is a proper party to this litigation. Section 447 of the Code of Procedure reads as follows:

“Any person may be made a defendant, who has or claims to have an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of the questions involved therein.”

•If the assignee of a contractor is a necessary or proper party in proceedings to enforce a mechanic’s lien, is one who claims to be an assignee a proper party? Is he an adverse party to the plaintiff, within the meaning of the Code? It seems to me that within the meaning of the section of the Code I have quoted, any person whom it is necessary or proper to make a party to the proceedings, for the complete determination of the rights of all persons concerned, and to finally determine the litigation, and who is not united in, or has a common interest with the plaintiff, or who refuses to join him in, the prosecution of the action, may be said to be a party adverse to the plaintiff. If I am correct in this, then it seems to me that an allegation, in the language of the Code, that such party “claims” such adverse interest, to wit, to be the assignee of the contractor, is a sufficient allegation of his interest in the proceeding. In the foreclosure actions, where it is desired to cut off parties who have acquired liens subsequent to that of the mortgage, by judgment, decree, or otherwise, it has been customary, from time immemorial, to allege that such parties “have, or claim to have,” a lien subsequent to that of the mortgage, the sufficiency of which statement, so far as I have been able to discover, has never been questioned. See Frost v. Koon, 30 N. Y. 428-448; Bloomer v. Sturges, 58 N. Y. 168. It will be observed that the language of the Code itself does not require an absolute statement of the interest of the adverse party. Under that, it is only necessary to "allege that he claims an interest. The object and purpose of this section of the Code was to enforce the old equity rule that all persons interested in the subject of the suit should be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and to secure a final determination of their rights. To accomplish this it is necessary not only to bring in any persons who have an interest in the controversy, or in the subject-matter thereof, in fact, but also all those who even claim to have any interest therein. To finally dispose of all controversies, cut off all liens, and prevent a multiplicity of suits, it must be obvious that it is necessary not only to dispose of all actual interests, causes .of action, or liens, but also of claims to such rights. So that if it is necessary and proper, for a complete determination of the proceedings to foreclose a mechanic’s lien, to bring in the assignee of the original contractor, it is also proper, if not necessary, to bring in any person who claims to be such assignee; and an allegation that a defendant claims to be an assignee is an allegation of fact, in the language of the Code, and is sufficient to show that he is a proper party for a complete determination of the proceedings and to prevent a multiplicity of suits.

For these reasons the order sustaining should be reversed, with ' costs and disbursements of this appeal, and costs in the court below. All concur.