Brush v. Levy — 54 A.D. 296

Majority

p. 296

Sarah A. Brush, Appellant, v. Sarah Levy, Respondent. Samuel J. Silberman, Appellant.

Headnote

Party — when not brought, into an action in order to litigate differences with a co-defendant.

Where an action is brought .to annul a lease, made by the plaintiff to the defendant upon the latter’s alleged false representation that she had acquired title to a prior lease of the premises covering a portion of the demised term, the prior lessee will not be made a party to the action against the will of the plaintiff, in order to allow the defendant to litigate differences arising between her and the prior lessee as to what rights the defendant took under a bill of sale and sub-lease executed to her by the prior lessee in which the plaintiff has no-interest.

Appeal by the plaintiff, Sarah A. Brush, and by Samuel J. Silbermaii, a third party, from an order of the Supreme Court, made ah the New York Special Term and entered in the office of the clerk of the county of New York on the lltli day of August,-1900, directing Samuel J. Silberman to be made a party defendant to the action..

The action is brought in equity to vacate and annul a lease made-by plaintiff to defendant for premises known as No. /T9 Canal street, New York city, for a term of ten years from May 1, 1900 ; and the alleged grounds upon which plaintiff asks this relief are, that the defendant made false and fraudulent representations in that she stated she had acquired all the right, title and interest of Samuel J. Silberman in and to a certain lease theretofore granted by plaintiff to-the firm of H. Silberman & Son.

The plaintiff is the owner of the premises, and in 1889 granted a. lease of the same to H. Silberman & Son, expiring May 1, .1901. H. Silberman & Son carried on the clothing business at this place-down to the time of the death of H. Silberman, and afterwards it was carried on by Samuel J. Silberman under the old firm name. In November, 1894, Silberman sold out the business and good will to the defendant herein, and at the time that the bill of sale was-made, a lease was also executed by Silberman for a term of five years and six months from the 1st day of November, 1894, so that this, lease, by its term, expired on the 1st day of May, 1900. In August,. 1895, Samuel J. Silberman procured from plaintiff a further agree

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ment for a lease for a term of five years commencing May 1,1901. At some time prior to the 23d of August, 1897, as plaintiff alleges, Mrs. Levy, the defendant, through her agent, falsely represented that she had succeeded to all the rights of H. Silberman & Son in the lease of the building ; and, believing this- representation, the plaintiff on August 23, 1897, granted a lease to Mrs. Levy for ten years commencing May 1, 1901.

It will be seen that the plaintiff executed two leases of the same premises to two different parties covering a period of five years from May 1, 1901; and, upon the ground stated, that the defendant’s lease was obtained by misrepresentations, the plaintiff seeks to have it canceled and annulled.

The defendant, although she denies the making of any false or fraudulent representations, claims that if Silberman acquired any interest in the premises, it was a fraud upon the rights secured to her by the purchase of the good will, and that, in equity, he holds the same for her benefit; and to the end that this question might he determined in the present action, she moved to have Silberman brought in as a party defendant. From the order granting such motion, the plaintiff and Silberman appeal.

George W. Dunn, for the appellant.

Arthur Furber, for the respondent.

Samuel Greenbaum, for Samuel J. Silberman, appellant.

That Silberman is not a necessary party is apparent; and it remains but to determine whether he is a proper party to an action wherein the plaintiff seeks to have canceled the lease which, it is alleged, the defendant procured through fraud.

It is not alleged that the plaintiff, was a party to the agreement made between the defendant, Mrs. Levy, and Silberman, or that her rights are in any way affected thereby. What the defendant, Mrs. Levy, claims is that even if plaintiff succeeds against her, she, Mrs. Levy by bringing Silberman in can have a determination in this same action of the question whether or not she is entitled to all the interests which Silberman secured under his lease from

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plaintiff. In- other words, the defendant, Mrs. Levy, proposes, in addition to the issue of fraud, which is one between herself and the plaintiff, to -introduce an entirely different issue, as between herself and Silberman, in which the plaintiff can have no interest.

The rule is that the plaintiff may select the forum, the parties to be sued and the cause to be litigated, and it is only where a completé determination of the action cannot be had that the court will require the presence- of such other parties. ' (Code Civ. Proc. § 452.)

That a determination can be reached between plaintiff and defendant on the issue of fraud without Silberman is evident, and it cannot be said that he has any interest in the subject-matter of this action which relates-to a lease made by the plaintiff to Mrs. Levy. If Silberman is brought in the issue will be entirely different, and instead of a controversy between plaintiff and Mrs. Levy as to whether the latter procured a lease by fraud, there will be presented the question as to what rights Mrs. Levy acquired "when she took the bill of sale and léase from Silberman —a matter in which the plaintiff has not the slightest interest and which she would neither be prepared nor expected to litigate.

To allow.Mrs. Levy to bring in Silberman, nolens miens, and compel him to litigate their differences in this action, would undoubtedly benefit Mrs. Levy; but as the plaintiff has no interest in these differences and Silberman has no interest in the subject of plaintiff’s- action, nor is his. presence necessary to a complete determination thereof, the plaintiff’s objection to the introduction of issues' and parties, which as to her are foreign, should be sustained. Without considering the question from Silberman’s standpoint as to whether he can be forced into this litigation against his protest, we think, considering the plaintiff’s-objections alone, that Silberman, on Mrs. Levy’s motion, should not have been made a party defendant.

If Mrs. Levy can prove that- she has succeeded to Silberman’s interests in the leases to him, then no misrepresentation was made and she has a perfect defense in this action. This she can prove as well without as with the presence of Silberman. If' she fails in her defense and has some grievance against Silberman, she has her remedy by an independent action. We do not think, however, that in order to save- Mrs. Levy the trouble and expense of another action, the plaintiff should be obliged -to amend her complaint in

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such a way as to permit the introduction of issues to be tried, as between the defendants, in which she, as plaintiff, has no legal interest. The rule that the court favors a course that will avoid multiplicity of actions, cannot be extended so as to benefit a defendant at the expense of a plaintiff.

We think the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, to the plaintiff and Silberman, separate bills.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, to plaintiff and Silberman, separate bills. .