Winters v. King

Herrick, J.:

It is claimed by the plaintiff that the appellant, the Erie Railroad Company, has assumed, by its deed of purchase, the liabilities incurred by the receivers in operating what was formerly the New York, Lake Erie and Westérn Railroad Company. And it is a general rule that where a third party becomes interested in a pending litigation, by assuming the-.liabilities of the defendant in respect to the claim the plaintiff is seeking to enforce, it :is proper to allow a supplemental,complaint bringing in such third party as a co-defendant in the action. (Prouty v. Lake Shore & M. S. R. R. Co., 85 N. Y. 272.)

The receivers, it seems to me, cannot complain because the Erie Railroad Company is made a party defendant with them. It does. not increase their liability, and it' does not prevent their recovering ■costs if they are finally successful in the litigation.

Neither does it in any way impair or change any force or effect that should otherwise be given to the order discharging them as receivers.

Neither can the appellant, the Erie Railroad Company, complain "because it has been brought in as a party defendant.

Confessedly it has purchased the property formerly in the possession of the receivers, and out of which any judgment that the plaintiff might have obtained against them would have been made good; and upon such purchase it assumed certain liabilities of the former railroad corporation and of the' receivers. The plaintiff has a'right to his day in court in order to have determined whether that assumption is broad enough to cover his alleged cause of action, and whether this court is the proper forum in which to enforce his claim.

By this order the Erie Railroad Company is placed in the same condition that it would be if an original action, had been commenced against it. It is in the same position that it would be if the present action had been discontinued, and a new one commenced against it, because of its alleged assumption of the liabilities incurred during the operation of the railroad by the receivers. It has the same defense to this action that it would have in the event of an entirely new action being commenced against it. A summons and complaint must be served upon it under this order as in an original action; and it has the same length of time to answer the complaint. It cannot complain because an action is brought against it, but can defend the action the same as any other party who is brought into court as a defendant by summons and complaint. (Abbott v. N. Y., L. E. & W. R. R. Co., 120 N. Y. 652.)

I can see no occasion for the court to determine upon this appeal whether the Erie Railroad Company funder its purchase and assumption of liabilities, has become liable for the alleged negligence of the receivers in operating the railroad." ■ If it is not liable, that can be determined upon the trial of the action. ■ ’

The appeals of both appellants should be dismissed, with ten dollars costs against each appellant, and with the disbursements of the appeal against, both.

All concurred.

Order affirmed, with ten dollars costs of the' appeal against each appellant, and with disbursements against both appellants.