Packard v. Wood — 17 Abb. Pr. 318

Majority

p. 318

PACKARD a. WOOD.

Supreme Court, First District;

General Term, March, 1864.

Headnote

Change of Pasties.—Beinging in Third Persons.

Under the Code of Procedure, a defendant is not entitled to compel an assignee of the cause of action pending the suit to become a plaintiff without his consent.^[2]

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If there be inherent power in the court to grant such relief, it -is a matter of discretion, and a refusal to entertain the application is not reviewable on appeal.^[2]

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Appeal from an order denying defendant’s motion to have one Amory joined with plaintiff as a party.

The action was by Austin Packard against loftis Wood, for an accounting between quasi-partners. Plaintiff had judgment for $29,322.10, from which defendant appealed to the general term, but without staying execution. Nearly the whole of the judgment had been collected by the sale of the defendant’s real estate to one Peter B. Amory. On the appeal, it was ordered that the judgment be reversed, unless plaintiff submit to certain reductions. The defendant contemplated a further appeal. On affidavit showing these facts, and also that Amory owned nine-tenths of the claim and was himself prosecuting the claim, and that the plaintiff of record was insolvent, defendant moved' that Amory be joined as a party plaintiff. The motion was denied by Mr. Justice Barnard, on the ground that “under the provisions of the Code the defendant cannot make such motion.” The defendant appealed.

George C. Goddard, for the appellant.

I. The judge at chambers denied the motion expressly and solely on the ground that he •had not the power under the Code to grant it. Should there

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be any doubt whether an appeal would otherwise lie from the order, this would sustain the appeal. (McElwain a. Corning, 12 Abbotts’ Pr., 16; McMahon a. Mutual Benefit Life Insurance Co., Ib., 28; Beach a. Chamberlain, 3 Wend., 366 .) The order affects a substantial right, as much so as an order to file a supplemental complaint. (St. John a. Croel, 10 How. Pr., 253 .) It is a right that the suit should be brought in the name of the real party in interest; and as much a right that it should be so continued, where, as in this case, the addition of such real party becomes important.

II. The power to grant the motion is given by the Code. And it existed in equity causes, which this is, before the Code. (See Code, § 173.) It is also within section 121, allowing a substitution in case of a transfer of interest. (Shearman a. Coman, 22 How. Pr., 517 .) In Dutcher a. Slack ( 3 How. Pr., 322 ), a person was made co-plaintiff on plaintiff’s application during the trial. A fortiori, may it be done on defendant’s application. “ The power of amendment under the Code, either before or after judgment, by adding or striking out the names of parties, is so comprehensive as to cover all cases which can arise and call for the interposition of the court.” (Sherman a. Fream, 8 Abbotts’ Pr., 33.)

III. The lapse of time is of no importance, unless the delay has prejudiced the other party; of which there is no pretence. The motion is made on notice to Amory as well as to plaintiff.

Charles Jones, for the respondent.

I. The Code directs, that in case of a transfer of interest the action shall be continued in the name of the original party, but the court may allow the person to whom the transfer is made to be substituted. This can only be done on the motion of the assignee. (Code, § 121; Harris a. Bennett, 6 How. Pr., 220 ; Sheldon a. Havens, 7 Ib., 268.)

II. The defendant has no right to make the motion ; and if he had, he has been guilty of laches in not moving before. More than four years have elapsed since he knew of the interest of Amory in the suit.

HI. The court can only grant the motion that Amory now be brought in as a party: the order cannot be made retroactive.

—The question here arises on appeal from an

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order made at special term, denying a motion, on the part of the defendant, that Peter B. Amory be joined as a party-plaintiff in this action as of the time he became interested therein, and that the judgment and proceedings be so amended. It appears that the case has been tried, and judgment rendered for the plaintiff, and that an appeal has been taken, which is not yet determined ; and a further appeal or a new trial is contemplated by the defendant, if the result of the present appeal is adverse to him.

The plaintiff assigned his interest in the demand in suit to Amory, who has made the advances to carry on the action since a trial was had before the referee. As the plaintiff retains a small interest only, and is now insolvent, the defendant desires that Amory, the responsible party, for whom the action is now prosecuted, shall be made a party-plaintiff, not only for the purpose of obtaining his liability for costs, but also for restitution in case the judgment shall be reversed, the said Amory having collected a large part of the judgment since its recovery.

The provisions of the Code relied on to sustain the motion are sections 121 and 173. Section 121 authorizes the action to be continued in the name of the original party, in case of a transfer of interest by means other than death, marriage, or disability. It provides also for allowing the person to whom the transfer is made to be substituted in the action. The latter .clause relates to the particular subject of introducing new parties to an action, by reason of an assignment of the interest of an original party. The language of this paragraph is poor authority for compelling a person to whom an interest has been transferred, pending an action, to become a party thereto.

In my opinion, the application is to be allowed in the discretion of the court, when the person to whom the transfer has been made demands it, and on the application of such party only. I am unable to perceive that authority to permit or allow an act to be done, can be construed as authority to compel it, against the wish of the person in whose favor the provision is made.

I have not overlooked the case of Shearman a. Coman ( 22 How. Pr., 517 ), decided at special term, but with great respect for the learned justice who made that decision, I am unable to concur in his views.

. Section 121 has superseded the practice of the late court of

Concurrence

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chancery in respect to the manner of conducting an action where a change or transfer of interest has occurred since the commencement of the action. As to the former practice, see Sedgwick a. Cleveland (7 Paige, 287).

Section 331 affords the defendant as effectual indemnity as to the costs, as he could have by substituting the assignee of the demand as the plaintiff herein. As to the liability of Amory for restitution in the event of the final success of the defendant, his remedy will not be improved, as the order cannot create a retroactive liability in this respect.

Section 173 relates to amendments. The court is thereby authorized to amend any pleading, process, or proceeding, by adding or striking out the name of a party. An amendment signifies the correction of something which was previously defective. It is not the office of an amendment to introduce new facts or parties, arising or becoming interested after the commencement of the suit. A supplemental complaint or answer is the proper practice in such cases.

The order appealed from should be affirmed, with costs.

I think the judge at chambers had power to grant the defendant’s motion; and as he denied it solely on the ground of want of power, I think the order should be reversed, irrespective of the question whether he ought to have granted the motion.

The justice at the special term based his decision on the ground that one party in an action cannot compel another person to become his adversary in the action under the Code of Procedure; and that section 121 of the Code does not warrant compulsion of this kind. Neither does the section relating to amendments warrant it. Whether the court has the inherent power to make such an order was not discussed below. The judge did not deem this a proper case, it is to be presumed, for entertaining the question. I concur with Judge Leonard in thinking that the order should be affirmed.

Order affirmed.