Graham Bros. Aktiebolag v. St. Paul Fire & Marine Insurance

Proskauer, J.

This action was originally brought against the defendant insurance company only. Berg applied for leave to intervene. His application was resisted by the plaintiff and he finally succeeded in the Appellate Division. (213 App. Div. 810.) He has filed .an answer containing some denials and setting up an affirmative cause of action against his codefendant. He obtained an order compelling plaintiff to give him security for costs and plaintiff moves to vacate that • order. Its contention is that it did not sue this defendant and that it should not be prejudiced in maintaining the action against the defendant it did sue by the circumstance that Berg had himself made a party defendant on his own motion. The situation appears to be novel and no authority is cited by either side. While the defendant may bring himself within the language of section 1522 of the Civil Practice Act, literally construed, it seems to me highly unreasonable that he should be allowed to subject the plaintiff to the necessity of giving this undertaking in spite of the circumstance that the plaintiff had no desire whatever to sue Berg or bring him in as a party. A reasonable construction of section 1522 seems to me to require a holding that the words “ the defendant ” mean the defendant originally sued or brought in on motion of the plaintiff.

Motion to vacate order for security for costs granted,