Honigbaum v. Jackson — 97 A.D. 527

Majority

p. 527

William S. Honigbaum and Harry H. Honigbaum, Appellants, v. Bertha Jackson, as Administratrix of Louis Jackson, Deceased, Defendant. Henry Jackson, Respondent.

Headnote

Bight to intervene—it does not exist in-the cáse of a statutory reference of a disputed claim for.money against an estate—the equitable power to allow intervention does . not exist in the case of a money demand, where the intervenor is not an infant.

Under section 2718 of the Code of Civil Procedure, relative to the. reference of disputed claims against a decedent’s estate, which provides that on the entry of the order of reference “the proceeding shall become an action in the Supreme Court,” the right of a third party to intervene, upon such a reference is governed by the general provisions of law relating to that subject, to wit, section 452 of the Code of Civil Procedure. •

Where the subject-matter of the reference is a mere money demand! a third party will not be allowed to intervene, as the Supreme Court has no power, under section 452 of the Code of Civil Procedure, to compel the plaintiff in an action in which a money judgment only is sought and in which title to no real, specific or tangible personal property is involved, to bring in as a defendant a third party on the latter's application.

The third party will not be allowed to intervene in such a proceeding, on the theory that an equitable power resides in the court to allow a stranger to intervene in an action where facts are presented showing that he has some possible interest in the event of the action, as such equitable power does not exist in the case of a mere money demand and where the proposed intervenor is not an infant.

p. 528

Appeal by the plaintiffs, William S. Hoñigbaum and another, from an order of the Supreme Court, made at the New York Special Term and entered in the,office of the clerk-of the county of New York on the 6th day of September, 1904, granting a, motion made by the respondent, Henry Jackson, for leave to intervene in the above-entitled action.

J. A. Seidmcun, for the appellants.

Jacob J. Aronson, for the respondent.

The order from which this .appeal is taken cannot be sustained. By it the respondent is allowed to intervene, and become a party to an action pending in the .Supreme Court and on trial before a referee. The plaintiffs made a claim, ‘which is simply a money demand, against the estate of Louis Jackson,, deceased. That claim was resisted’ by the administratrix with the will-annexed1, and thereupon proceedings were taken, under section 2718 of the Code of Civil Procedure a’nd a referee was appointed to ’pass upon its merits; The respondent, who is a legatee under the will ~ of the decedent, asks to.be allowed to¡ intervene and assigns as grounds of his application that there is reason to'apprehend that the administratrix is not acting in good- faith; that she .is in collusion with the plaintiffs, who are her children, and that she will not properly contest their right to recover,-and that if they do recover upon their asserted claim-, it' will be necessary to resort to the assets of the estate to pay the judgment, and among -such assets are the articles specifically bequeathed to;the respondent.

By the terms of section 2718 of the Code of - Civil Procedure, the proceeding for the ascertainment; of the validity of the plaintiff’s claim became, on the appointment of the referee, an action in the Supreme Court. The statute;, is explicit. It says that “on the entry of such order, the proceeding shall become an action in the Supreme Court.” ’ That being the status of the proceeding, the right to intervene in it must be controlled by provisions of law relating to that subject. The right1 of a third party to intervene in an action is conferred by section 452 of the Code Of Civil Procedure. There has been a diversity of ’ opinion as to the proper construe

p. 529

tion to be given to that provision of the Code, but its interpretation has been finally settled by the Court of Appeals. In Bauer v. Dewey ( 166 N. Y. 402 ) it was held that the Supreme Court has “ no authority under section 452 of the Code of Civil Procedure to compel the plaintiff, in an action in which a money judgment only is sought and in which the title to no real, specific or tangible personal property is involved, to bring in as a defendant a third party on his oVn application.” In the present case, there is merely a money demand. There is nothing in the action affecting the title to any property.

It is suggested by the respondent that an equitable power resides in the court to allow a stranger to intervene in an action where facts are presented showing that he has some possible interest in the, event of that action, and the case of Mertens v. Mertens ( 87 App. Div. 295 ) is cited as authority for that proposition. There, the interest of an infant was directly involved and the court exercised its power to guard the interests of á person not able to protect himself, and because of the exceptional character of the case. Haas v. Craighead ( 19 Hun, 396 ) is also relied upon in support of the order now under consideration; but that was a suit in equity, relating to something more than a mere money demand.

The order appealed from should be reversed, with ten dollars costs'and disbursements, and the motion for leave to intervene denied, with ten dollars costs.

Van Brunt, P. J., O’Brien, Hatch and Laughlin, JJ.? concurred.

Order reversed, with ten dollars costs and disbursements, and motion for leave to intervene denied, with ten dollars costs.

Cases cited

Bauer v. Dewey 166 N. Y. 402 N.Y. 1901-04-16 p. 529
Mertens v. Mertens 87 App. Div. 295 N.Y. App. Div. 1903-11-06 p. 529