Standard Sewing-Mach. Co. v. Heyman

This is an appeal from an order of Mr. Justice McCarthy directing that one Jacob Brown, upon his own application, be made a party defendant to the action, which action was brought by the plaintiff against the defendant Heyman, to recover 20 sewing machines which plaintiff alleged that Heyman procured from it by fraud. Brown’s allegation was that he was the owner of the property; and, upon that allegation, he moved, undep the provision of the latter portion- of section 452 of the Code, to be made ■a party defendant. The contention of the appellant is that this relief was improperly granted to Brown, because he might have protected his interests in the manner provided by section 1709 et seq. of the Code. We do not find this contention to be supported by the decisions. A person claiming title to property which is sought to be replevied from the possession of another may either make his third-party claim thereto, under the provisions of section Í709 of the Code, or move to be made a party defendant, under section 452, at his option. Uhlfelder v. Tamsen, 15 App. Div. 436 , 44 N. Y. Supp. 484 ; Rosenberg v. Salomon, 144 N. Y. 92 , 38 N. E. 982 , distinguishing Chapman v. Forbes, 123 N. Y. 532 , 26 N. E. 3 .

The order appealed from must be affirmed, with $10 costs and disbursements to the defendant Brown, against the plaintiff.

SCHUCHMAY, J., concurs.