Lawton v. Lawton , 61 N.Y. Sup. Ct. 415 ( 1889 )

Brady, J.

This is an action to foreclose a mortgage made by the defendant George B. Lawton to his wife, the plaintiff. The complaint was served' on the defendant George B. Lawton, who voluntarily appeared on the same day. The defendant George B. Lawton, Jr., did not appear. Neither answer nor demurrer was served herein, and judgment was entered by the plaintiff’s attorney on the 26tli of April, 1889. The appellant, by petition verified May 11, 1889, obtained an order to show cause why the judgment should not be opened .and she made a party to this action. Upon the argument which followed, an order was made at special term, on May 31, 1889, granting the-petition on terms; but on failure to comply with them the motion was denied. The learned justice in the court below, under the provisions of section 452 of the Code, granted the application; and, upon the ground that the petitioner had a vested interest in the property which was described in the complaint, declaring in his opinion that the extent of the interest it1 was not-necessary to determine,—it was enough that she had a substantial interest, and that she had such an interest was clear. The learned justice, however, thought it should be granted upon the conditions which he imposed, namely, paying the referee’s fees, giving a bond for the costs of the action that might be awarded against her, and, if the plaintiff desired it, consenting to refer the issues raised by her answer and try the same on five days’ notice. If she failed to comply with these conditions the application was denied. The learned judge erred in imposing the conditions. The section of the Code-mentioned declares that when 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 hern ode a party, it must direct him to be brought in by proper amendment. In Haas v. Craighead, decided in this department and reported in 19 Hun, 396, it was said that the section referred to was very comprehensive and peremptory. And in Earle v. Hart, 20 Hun. 75, the general term of this department said: “As to persons having an interest at the time of filing the Us pendens, the right to be made a "party is absolute.” And, the right being absolute, the court had not the power to impose the conditions mentioned. Wood v. Swift, 81 N. Y. 34. In that case a condition was imposed where-the right to the remedy asked was absolute, and it was discarded as unlawful. See, also, Tompkins v. Smith, 62 How. Pr. 499, 89 N. Y. 602, declaring a kindred doctrine. The question involved herein has therefore been decided against the respondent. No successful answer to this view is presented on the record. Perhaps the only suggestion that could be made would be loches on the part of the petitioner; but this criticism in this proceeding cannot be made.

For these reasons that part of the order appealed from should, be reversed,, with $10 costs and the disbursements. AH concur.