Standard Sewing Machine Co. v. Heyman

Olcott, J.

This is an appeal from an order of Mr. Justice McCarthy directing that one Jacob Brown, upon his own application, be made a party defendant to the action, which action was brought by the plaintiff against the defendant Heyman'to recover twenty sewing machines which plaintiff alleged that Heyman procured from it by fraud. Brown’s allegation was that he was the owner of the property; and upon that allegation he moved, under the pro- . visions of the latter portion of section 452 of the Code, to be made a party defendant.

The contention of the appellant is that this relief was improperly granted to Brown because he might have protected his interests in the manner provided by section 1709, et seq., of the Code. We do not find this contention to be supported by the decisions. A person claiming title to property which is sought to be replevined from the possession of another, may either make his third party claim thereto under the provisions of section 1709 of the Code or move to be made a party defendant under section 452, at his option. Uhlfelder v. Tamsen, 15 App Div. 436; Rosenberg v. Salomon, 144 N. Y. 92, distinguishing Chapman v. Forbes, 123 id. 532.

The order appealed from must be affirmed, with' $10 costs and disbursements to the defendant Brown against the plaintiff.

Sohuohmait, J., concurs.

Order affirmed, with $10 costs and disbursements to defendant Brown against plaintiff.