Uhlfelder v. Tamsen

case the applicant, who had an interest in the property which was the subject of the action, had been permitted to become a party to the action upon conditions which the court imposed; and the only question presented to the court at general term was whether it was within the power of the court at special term to impose conditions upon one who made an application to be brought in as a party under section 452. It was directly decided that no such power existed; that the applicant’s right to the remedy was absolute; and so much of the order as imposed conditions was reversed. This case was decided by the general term of the First department; Justice Brady writing the opinion, and Presiding Justice Van Brunt and Justice •Daniels concurring. The same question has necessarily been decided by the court of appeals, as it seems to me. The law has always prescribed that no order was appealable to the court of appeals if it involved any question of discretion, and, in all cases where the order appealed from might have been refused at the discretion of the supreme court, it was the duty of the court of appeals to dismiss the appeal. In the case of People v. Albany & V. R. Co., 77 N. Y. 232 , in which an application had been made by the Troy & Boston Railroad Company to be made a defendant under section 452, the court at special term had granted the order, but the general term reversed the same and denied the application. 15 Hun, 126 , An appeal was taken to the court of appeals, which held that the applicant had such an interest as entitled it to be brought in, and that under the provisions of section 452 it was error to deny the application. The court of appeals accordingly reversed the order of the general term, and affirmed the order of the special term. If there had been any discretionary power in the supreme court to deny this order, this action of the court of appeals could not have been taken. The same question was presented again to the court of appeals in the case of Johnston v. Donvan, 106 N. Y. 269 , 12 N. E. 594 , in which the special term had denied the motion of the applicant to come in, and that decision had been affirmed by the general term of this department. It was reversed by the court of appeals and the application was granted. I regard these decisions as necessarily involving the proposition that the right of a person who makes the proper proof, under section 452, to be brought in as a defendant in such an action as this, is absolute, and it is beyond the power of the court to impose any condition. In the case of Ashton v. City of Rochester, 133 N. Y. 187 , 30 N. E. 965 , and 31 N. E. 334 , Judge O’Brien, in delivering the opinion of the court, lays stress upon the right of the applicant under section 452, and emphasizes the word “must,” which is used in that section, and cites the case of People v. Albany & V. R. Co., supra, as establishing the absolute right of the applicant. I have been unable to find any case, either in the court of appeals or in the general term, which overrules these authorities, or suggests any other construction of the section in question. In Chapman v. Forbes, 123 N. Y. 532 , 26 N.

ing that the plaintiff be compelled to bring in a third party as defendant; and the court held that the section did not apply to a motion of that kind, and, accordingly, that it was proper to deny the same. In Rosenberg v. Salomon, 144 N. Y. 92 , 38 N. E. 982 , two persons situated as these applicants are applied to be brought in to an action of replevin which had been commenced against the sheriff. The order was granted, and affirmed by the general term; and on the appeal to the court of appeals the point was made that the order was improper, under the decision in Chapman v. Forbes, supra, because under that decision the court had no power to grant relief. What is said in that case as to the power of the. court must be construed in view of the question which the court was examining; that is,, whether the case of Chapman v. Forbes had decided that there was no power in the court to grant the relief asked for under this section. That was the only question presented in Rosenberg v. Salomon, and for that reason it is no authority in regard to the point now under consideration. In the case of Bohnet v. City of New York, 150 N. Y. 279 , 44 N. E. 949 , a final order had been entered in a mandamus proceeding, and the application was to open the case and allow the applicant to come in. Whether or not the final order should be opened to allow a person to come in who had made no application to the court during the pendency of the matter was clearly within the discretion of the court. The court say, “Undoubtedly the supreme court had power to open the proceedings and allow the appellant to be brought in, but whether this power should be exercised rested in its discretion.” That case is no authority upon the point in question here.

The question presented in this case is not of itself, perhaps, of great importance; but it is of importance, as it seems to me, that any rule of construction of the Code which is established by a long series of decisions should not be overthrown unless it is made to appear that the construction heretofore given to it is unquestionably wrong. If that construction is required by the language of the statute, but nevertheless produced inconvenience, the remedy is not with the courts, but with the legislature.

The order of the appellate term should be reversed, and the order of the general term of the city court should be affirmed, with costs in this court and the appellate term. All concur.