Johnson v. Atlantic Avenue Railroad , 76 Hun 12 ( 1894 )

CULLEN, J.

This is an appeal from an order denying defendant’s application for leave to serve an amended answer. This litigation arises out of a lease executed by the defendant to the plaintiffs. The defendant sued the plaintiffs for the rent agreed to be paid, but was defeated. 134 N. Y. 375, 31 N. E. 903. The plaintiffs brought this action to recover damages for breach of defendant’s covenants. The lease was executed in 1886. The defendant’s action was instituted in 1888, and this action in 1890. In the defendant’s action for rent, the present plaintiffs alleged as a defense an assignment of the lease of the Brooklyn Cable Company, and its acceptance as a tenant by' the Atlantic Avenue Railroad Company. The decision in that case proceeded on another ground. It thus appears that the defendant, long before the institution of this action, knew of the assignment. The amendment now desired by it is to plead such assignment.

We think that the application was properly denied, on account of the loches of the defendant. This suit has been in litigation over three years, and has been tó the court of appeals upon an interlocutory order. As to whether, under the present answer, the defendant can show the assignment to defeat the title of the plaintiffs to the damages suffered, or whether such assignment, if shown, would defeat the plaintiffs’ title, we express no opinion. But it appears from the affidavits that the cable company practically is the property of the plaintiffs. The defense sought to be interposed does not go to relieve the defendant from liability, but to establish that its liability is to another person in law. If it was intended to question Johnsoü’s right to the recovery, if any such might be had, it should have been done promptly. If the defense sought to be pleaded was that defendant was liable to no one, we might look upon it with favor. But the effect of the amendment will be to cause the bringing of another suit by the cable company, so that, in one case or the other, there may be the right plaintiffs. We think the defendant should not now be granted any favor in this respect, but the defendant should be saved from any risk of a double litigation, or of being compelled to pay the claim twice. The order appealed from should be affirmed, with costs, provided that within 30 days the plaintiffs obtain an assignment to themselves of any claim the cable company may have against defendant under the lease. In default thereof the application may be renewed.