Charles F. Garrigues Co. v. Casualty Co. of America

Headnote

Garrigues Co. v. Casualty Co. of America, 175 App. Div. 895 , affirmed.

Appeal, by permisión, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 27, 1916, which affirmed an order of Special Term denying a motion by the appellants herein for an order directing that they be brought in and made parties defendant in the above-entitled action. The action is brought to recover the amount of a surety bond delivered by the defendant to the plaintiff. The bond was given to secure the performance of the terms of an agreement entered into between the plaintiff and Martin E. Stiner and Walter H. Stiner, comprising the firm of William H. Stiner & Son, and the said firm of William H. Stiner & Son are the principals on the said bond, and the defendant in this action the surety. The application for leave to be made parties herein by the said firm of William H. Stiner & Son was made under section 452 of the Code of Civil Procedure, and particularly under the provision thereof which provides that a party having an interest in the subject-matter of an action, and not a party thereto, upon his application must be made a party. The reason for the application is that the petitioners have an absolute defense to this action as the moving papers show, which the defendant cannot properly present. Further"more, the defendant has no real interest in this action and petitioners are the real parties in interest.

The following question was certified; “Have Martin E. Stiner and Walter H. Stiner, the petitioners herein, such an interest in the subject-matter of this action as entitles them on their own application tobe brought in as parties defendant by the proper amendment under the provisions of section 452 of the Code of Civil Procedure.”