Christman v. Thatcher — 1 N.Y.S. 451

Majority

p. 451

Christman v. Thatcher, Overseer of the Poor, et al.

(Supreme Court, General Term, Third Department.

May 17, 1888.)

Headnote

Poor and Poor-Laws—Actions for Services to Indigent Persons—Parties.

In an action for services rendered by plaintiff’s assignor, a physician, to an indigent person, at the request of defendant, an overseer of the poor, it is error to grant an order requiring plaintiff to make the town a defendant, under Code Civil Proc. N. Y. § 452; providing that the court may direct other parties to be brought in when necessary to determine the controversy, as the town, if made a party, could have successfully demurred on the ground of no cause of action.

p. 452

Appeal from special term, Montgomery county; F. F'ish, Justice.

This action is brought by Raymond Christman, plaintiff, to recover of defendant, John W. Thatcher, as overseer of the poor of the town of Amsterdam, on a claim of $75 for services claimed to have been rendered by one Timmerman, as a physician, in prescribing and caring for one' Edward Murphy, who, it is alleged, had become chargeable to said town for his relief and support; that the services were performed at the request of said overseer. It is also alleged that said Timmerman presented a claim for said services to the board of town auditors of said town, at its regular meeting in ¡November, 1887, and that the same was disallowed by said board; that said claim whs thereafter sold and assigned to plaintiff. The defendant the town of Amsterdam moves an affidavits to be made party defendant, under Code Civil Proc. § 452; providing that, where the determination of the case requires the presence of other parties, the court may order them brought in. An order was made at special term, held January 24, 1888, in Montgomery county, making said town of Amsterdam a party defendant herein, etc., and from such order the plaintiff brings this appeal.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

E. P. White, for appellant. Westbrook & Borst, for Thatcher, respondent. Peter J. Lewis, for town of Amsterdam, respondent.

This is an action to recover for services rendered, as alleged, by plaintiff’s assignor, a physician, to an indigent person, at the request of defendant. The town of Amsterdam moved to be made a party defendant, and an order was granted requiring plaintiff to amend his summons and complaint accordingly. The plaintiff appeals, and alleges, among other things, that he has no right of action against the town of Amsterdam, and will therefore be beaten as to that defendant on the trial, and hence may incur two bills of costs. The town insists that it will ultimately be liable for the payment of any sum recovered against the overseer, and charges that the overseer does not defend the action in good faith. This a mere common-law action for the recovery of money on contract. It affects no specific property. How, without attempting to specify all the cases in which the remedy given by section 452 may be had, we think it is plain that when a person, if made a party defendant by the plaintiff at the commencement of the action, could have demurred successfully on the ground of no cause of action, and on the trial would have recovered against plaintiff his costs, it can se.dom, if ever, be proper to compel the plaintiff to add such a person as a party defendant. There have been many decisions, and some of them conflicting, on this section. In some cases cited by the respondent the court gave simply the right to appear and cross-examine, as in Clay v. Clay, 21 Hun, 609 ; in some to produce witnesses, as in Tilby v. Hayes, 27 Hun, 250 ; in some to proceed in the name of the party, as in Hoffman v. Steinau, 84 Hun, 239 . Davies v. Pish, 19 Abb. N. C. 24 , in the court of appeals, was an equitable action brought by relator, and was therefore within the old chancery practice of bringing in all persons having an interest, the matter of costs being to the discretion of the court. Haas v. Pike, 19 Hun, 398 , was for an annuity, and the person made a party had an interest in the land affected. See Davies v. Fish, p. 28. In Gas Light Co. v. Treman, 30 Hun, 212 , the person made a defendant stood in the position of a quasi cestui que trust of the plaintiff, viz., a stockholder of the company, and could probably have maintained the action as plaintiff if the company had refused to sue. Johnston v. Donvan, 106 N. Y. 269 , 12 N. E. Rep. 594 , was a case where the person who was made a defendant claimed an equitable title to the land under foreclosure. We do not think it necessary to cite other cases. These are enough to show that the present is a case of a different character from those where the relief has been granted. By the provisions of the statute, the original defendant, Thatcher, is charged with the

p. 453

duties out of which this action arose. He is the proper person to be sued and to defend the rights of the town. We do not' think that the supervisor should compel the plaintiff to make the town a defendant, in order that the supervisor may defend the action. The order should be reversed, with $10 costs and printing disbursements; and motion denied, with $10 costs, to be paid by said town.

Landon and Ingalls, JJ., concur.

Cases cited

Johnston v. Donvan 106 N. Y. 269 N.Y. 1887-06-21 p. 452