Horan v. Bruning

The action is in negligence for personal injuries, and was originally brought against the defendant Anderson, alone, and issue joined by service of an answer by him. Thereafter the plaintiff learned facts which led him to believe that the respondent Bruning was also guilty of some act which led to the accident, and without notice to him he obtained an order making him a party defendant, with leave to serve a supplemental summons and complaint upon him. Bruning appeared specially and moved to set aside such order, on the ground that the court had no authority to make it, which motion was granted; and from the order made thereon the plaintiff appeals.

There is some confusion of authority as to whether the court has power in a simple action at law, where a money judgment alone is sought, to permit a plaintiff to bring in third parties as additional defendants to his action; but we think the weight of authority and reason is that he has not, and that the order appealed from is right, and should be affirmed. The Fourth Department, in Heffern v. Hunt, 8 App. Div. 585 , 40 N. Y. Supp. 914 , held that the court had no power to add as a party defendant an alleged joint tort-feasor not originally made a party; and the Second Department, in Schun v. Brooklyn Heights Railroad Company, 82 App. Div. 560 , 81 N. Y. Supp. 859 , held that it had in a negligence action, but that an order adding a defendant in a replevin action was unjustified (Gold-stein v. Shapiro, 85 App. Div. 83 , 82 N. Y. Supp. 1038 ) ; and the Third Department, in Ten Eyck v. Keller, 99 App. Div. 106 , 91 N. Y. Supp. 169 , in an action for conversion, held that no such power existed.

Whatever power there is in the court is derived from sections 452 and 723 of the Code of Civil Procedure. Section 452 of the Code relates primarily to equitable actions (Rosenberg v. Salomon, 144 N. Y. 92 , 38 N. E. 982 ), and that section gives the court no authority to compel tile plaintiff, in an action in which a money judgment only is sought, and in which the title to no real property or specific or tangible personal property is involved, to bring in as a defendant a third party, even on his own application. Bauer v. Dewey, 166 N. Y. 402 , 60 N. E. 30 ; Long v. Burke, 105 App. Div. 457 , 94 N. Y. Supp. 277 . If, therefore, the court has any power, in an action at law in which

The scope and meaning of the provision of the section quoted has been long before the courts, for almost the precise language is found in section 173 of the Code of Civil Procedure of 1862. The prevailing and dissenting opinions in New York Milk Pan Co. v. Remington’s Agricultural Works, 25 Hun, 475 , review the various decisions of the courts made up to the time they were written. The defendant in that case was a corporation, and service had been made upon an officer, who was also a copartner with two others dealing under the name of the Remington Agricultural Company, which copartnership had taken over the contract from the corporation defendant upon which action was brought. Upon discovering the situation the plaintiff moved to substitute the officer upon whom he had served individually for the corporation defendant, and to add his two other partners as defendants. The General Term concluded that, inasmuch as one of the partners had been served, the court had power to do this. The Court of Appeals reversed the case ( 89 N. Y. 22 ), and held that such an act was not within the scope of section 723 of the Code, and that no such power existed. While in that case there was a virtual changing of defendants, which is not the situation in the present case, the decision illustrates the fact that the section does not give power to the court to grant every kind of an amendment, notwithstanding justice may be subserved thereby.

In Chapman v. Forbes, 123 N. Y. 532 , 26 N. E. 3 , the action was for money had and received through one Breen as plaintiff’s agent. The defendant admitted receiving the money, but pleaded that it belonged to Breen, and that Breen’s assignee had brought action against him to recover it, and moved that such party be made codefendant, and his motion was granted against plaintiff’s protest; but the Court of Appeals said such order was unauthorized. It is true that in this case and in that of Bauer v. Dewey, supra, section 723 of the Code is not referred to; but it existed, and all of its broad provisions were in force, and, if either order could have been sustained under the provisions of that section, presumably neither of them would have been reversed, for both were in furtherance of justice and the quieting of litigation.

There seems to be no more reason for dragging in a third party as a defendant against his protest than for refusing to permit him to come in against the protest of the plaintiff. If there is no power to let him come in, there is no power to compel him to do so. It is true that the plaintiff could have sued the appellant when he brought his action against the other defendant. It is also true that he could select such of several tort-feasors as he saw fit and bring action against them. In an action for personal injuries occasioned by the

The order should be affirmed, with $10 costs and disbursements.

PATTERSON, P. J., and CLARICE, J., concur.

(dissenting). The action was commenced against Frithiof Anderson as sole defendant to recover damages for a personal injury by the service of a summons and complaint on the 4th day of August, 1905. On the 6th day of April, 1906, on application of the plaintiff, consented to by the defendant, an order was entered allowing the plaintiff, within 30 days from the date of the order, to serve a supplemental summons and amended complaint, a copy of which was annexed to the application, upon Henry Pruning, then making him a defendant in the action. On the 7th day of April, 1906, the supplemental summons and amended complaint was served upon Pruning, and he thereupon became a defendant in the action. Subsequent to such service he appeared in the action for the purpose of moving to set aside the order authorizing the service of the supplemental summons and amended complaint. That motion was granted, and the plaintiff appealed.

The original order allowing the plaintiff to amend the summons and complaint was authorized by section 723 of the Code of Civil Procedure. That section provides that:

“The court may, upon the trial, or at any stage of the action, * * * and on such terms as it deems just, amend any process, pleading or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case.”

The parties to the action having consented to the amendment of the summons and complaint, the party joined became a party to the action to the same effect as if he had been originally made a party. It is quite probable that this added defendant does not want to be sued; but, when the amended or supplemental summons and complaint was authorized by the court on the consent of all parties to the action, the action as against this added defendant was the same as though he had originally been made a defendant, and I do not see that he had any more right to complain than he would have had if he had been originally joined in the action. An entirely different question would be presented if one of the original parties to the action had objected to the proposed amendment.

For this reason I think the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

McEAUGHEIN, J., concurs.